Te Ture Whenua Māori Bill

Commentary

Recommendation

The Māori Affairs Committee has examined Te Ture Whenua Māori Bill and recommends that it be passed with the amendments shown.

Introduction

This bill seeks to repeal and replace the current law relating to Māori land, Te Ture Whenua Māori Act 1993.

The bill proposes a new approach that aims to increase the ability of Māori land owners to use their land by empowering them to make decisions by and for themselves, supported by an owner-focussed Māori land service. At the same time, it aims to maintain, and even to strengthen, the protections that currently exist for the retention of Māori land for the benefit of future generations (a taonga tuku iho) by virtue of whakapapa.

The current Act still contains provisions that date back more than 100 years, to the Native Land Act 1909. These provisions cover issues such as surveys and leasing. In addition to reforming the legal and institutional framework relating to Māori land, the bill would completely refresh and modernise the legislation’s drafting and style.

Core principles

One of the bill’s core principles is that tikanga Māori is central in deciding matters that involve Māori land. The committee agrees with advice that codifying tikanga would be an overly prescriptive interpretation of values and principles when applied to Māori land. We believe that these are best left for whānau, hapū, and iwi to determine. Under the bill, for example, tikanga Māori would be called on in determining the preferred recipients of Māori land, relationships of descent, and the determination for a dispute resolution model.

All of the core principles that would underpin the new legal framework for Māori land are set out in clause 3 of the bill. We endorse these principles, and will not repeat them here.

Background

The bill’s development has entailed extensive consultation, including the circulation of an exposure draft for submissions, which is not usually done. After taking into account the feedback from submissions, and from numerous reports, consultations, and hui, the version of the bill as introduced to the House is the result of 16 drafts over a period of some 30 months. The consultation process was criticised by some submitters who believed that not enough time had been given to consider the proposed changes, and their consequent impact on Māori land owners.

The bill originated from a first-principles review of the current law by an independent review panel in 2012. The panel was established in response to longstanding calls for reform of the 1993 Act, dating back to the late 1990s. We heard a view during the submissions process that the panel was charged with reviewing the Act, and instead recommended that new legislation was needed. As the panel stated in its final report,

The structure of Te Ture Whenua Māori Act, with a primary focus on the Māori Land Court and its jurisdiction, does not lend itself well to a new framework in which we consider the focus should very clearly be on Māori land protection and utilisation and empowerment of Māori land owners and their decision-making.

While the bill would retain the Māori Land Court, it would make some changes to its jurisdiction, and transfer some functions to a new Māori Land Service. Whereas the current 1993 Act has the court as its central focus, the reforms proposed in this bill would place the legislative focus on the land itself and the rights and authority of the owners. Some of us believe that the extent of the changes create a bias towards utilisation of land, and consequently may disenfranchise land owner interests.

Size and structure of the legislation

We agree with the many submitters who have commented that the bill is large and complex, making it difficult to understand. It is in 16 Parts, with 12 Schedules.

The bill seeks to set out the law relating to Māori land, and offers the benefit of providing more certainty for the owners of Māori land, and others affected by the law.

In order for the new arrangements to be clearer and easier for Māori land owners to use, a period of familiarisation would be essential. As we discuss later, the new arrangements would need to be thoroughly explained to users before the legislation came into force.

The bill would become three new Acts

It is intended that the bill would be divided into three separate pieces of legislation before enactment, reflecting the three main areas of change.

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The overall legal framework for Māori land, which is contained in Parts 1–9 and Schedules 1–4 of the bill, would become Te Ture Whenua Māori Act.

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The institutional arrangements and machinery-of-justice provisions for the Māori Land Court and the Māori Appellate Court, currently in Parts 10–15 and Schedules 5–7 of this bill, would become Te Kooti Whenua Māori Act.

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Consequential and other changes to existing legislation, in Part 16 and Schedules 8–12 of this bill, would become Te Ture Whenua Māori (Repeals and Amendments) Act.

We consider this a sensible approach. It would keep the two main Acts—dealing with the law relating to Māori land, and the court arrangements—separate and avoid cluttering them with consequential changes to other legislation. We consider that having the court-related provisions in a separate Act from the law relating to Māori land is appropriate, since the Māori Land Court also derives jurisdiction from several other statutes.

The wider reform programme

The bill forms part of a wider programme of work on reforming the current arrangements for Māori land. It sets out the basis for new arrangements that are still in the process of being developed. Understandably, this has caused uncertainty for us, and for submitters, in evaluating how the new approach would work in practice, and therefore in deciding how we feel about the bill.

Māori Land Service

In particular, the bill provides for a number of functions intended to be provided by a proposed new Māori Land Service. This service, which is still under development, would take over some of the functions currently carried out by the Māori Land Court. This new organisation would provide very important services for the owners of Māori land, including:

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supporting owners in their decision-making, the establishment of governance arrangements, and arrangements for succession

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administering the new dispute resolution service provided for under the bill

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maintaining the record of Māori land ownership, and providing associated information and registry services

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helping to promote the utilisation of Māori land.

Related work to enable better use of Māori land

Work is also under way on trying to find solutions to several obstacles that owners of Māori land currently face, so they can make better use of their land.

These parallel lines of work include trying to solve problems with landlocked land and unformed (“paper”) roads; to improve the way the Public Works Act 1981 affects Māori freehold land; and to further improve the Local Government (Rating) Act 2002 to ensure fairness in how Māori freehold land is valued and the level of rates charged. Several government organisations are involved in this work, including Te Puni Kōkiri, the Ministry of Justice, and Land Information New Zealand. The committee is advised that no dates have been set for the completion of these parallel lines of work.

How the bill fits into the wider programme

One difficulty we have faced in examining the bill is that these associated aspects of the reform programme are still being worked on, so detailed information is not yet available. We spent time during our consideration of the bill questioning officials about how the Māori Land Service might work in practice, how soon it would be set up, what its structure and staffing might look like, and how well it would be funded.

We were provided with some useful background and explanation, which we will make available along with this report. In essence, it was explained to us that:

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the bill sets out the basic elements of what the Māori Land Service would do (such as services to land owners, and help with dispute resolution)

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the bill therefore needs to proceed first, in order to provide the legal basis on which the new organisation would be built

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basic design work for the Māori Land Service is under way, involving much consultation with owners around the country about the services they need

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a key milestone will be decisions on a business case for the new service around April 2017; we believe the funding already provided for design work gives an indication of the Government’s commitment regarding future funding, but we note that ongoing funding for implementation is not yet determined

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the timing envisaged in the bill allows for an unusually long period between the time it is passed into law and the final commencement date of 1 October 2018; this would allow the most important aspects of the Māori Land Service to be up and running by the time the new Act took effect. Some of us note that adequate funding would be required to ensure optimum implementation

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enhancements to the service, particularly those involving IT components, would be phased in over a five-year period after that; the aim is to have a durable design, fit for the needs of future generations

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it is unclear at this stage where the service would sit in relation to existing agencies, or where its staff would come from; while the service would need to call on existing institutional and whakapapa knowledge, it would also require a cultural shift to focus more on finding integrated solutions for landowners. We note that current re-structuring of the Ministry of Justice poses a risk to the loss of institutional knowledge in the establishment of the Māori Land Service.

We would have liked a clearer “dashboard” of the timing and plans for the service. However, we understand why this cannot be provided until after the legal framework in the bill is finalised, and the Government makes further decisions.

We also asked many questions about what is being done to enable Māori land owners to overcome current obstacles, and how soon solutions might be found. We were told that various provisions in the bill should make it easier for owners to make decisions about use of their land, and work is continuing on this “enabling” work. However, we were advised that some matters such as landlocked land and paper roads may need considerable time to resolve.

Our consideration of the bill and submissions

We have read and considered carefully the submissions of more than 150 groups and individuals on the bill, and heard 47 submissions from those who wished to discuss their views in person with us. There were 15 submissions in support of the bill, 39 opposed, and 98 neither supported or opposed the bill. Some of us believe that these metrics may not be an accurate reflection of the depth of concern, due to the density of the bill, and potentially underpins a lack of engagement with formal processes.

We have also spent considerable time questioning officials to gain a better understanding about how various aspects of the new arrangements would work in practice. This has given us some reassurance, but more information would need to be disseminated to give future users of the legislation a similar degree of comfort.

A users’ guide will be essential

We consider it vital that information and guidance be provided about the new legal and institutional framework if the bill is passed, so that people would be familiar and comfortable with it by the time it came into force.

Many submitters expressed unease to us about the proposed reforms. It seems that many of their concerns come from uncertainty about how the new approach would work in practice. This uncertainty is no doubt partly because of the timing issues we have discussed—that is, because the bill is progressing through the House while work is still being done on key aspects of the reform programme: developing and establishing the Māori Land Service, in particular.

In this respect we think it is valuable that the bill envisages an unusually long lead-in period, with 18 months allowed for between Royal assent and commencement. In our view, this period will be critical to ensure that people are well informed about the new law and feel comfortable about using the new approaches and services.

We recommend that every effort be made to provide timely information and guidance to those who would be affected by the legislation. We suggest this include a users’ guide to the legislative framework and the new Māori Land Service, and a concerted effort at publicising practical information about the new regime. Care should be taken to convey the information in a way that is easy to understand, including diagrams and infographics.

Recommended amendments

We are recommending numerous changes to the bill in response to issues raised by submitters, and our own scrutiny. We believe these changes would fit better with the core principles underlying the bill, improve its workability, and avoid unintended consequences.

The rest of this commentary discusses the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

Part 1—Preliminary provisions

Interpretation

Clause 5 defines various terms used throughout the bill. It should be noted that the term “tikanga Māori” is not defined. We concur with this approach, as we agree that the appropriate application of tikanga Māori in any particular situation would be something to be determined on the basis of evidence—that is, by reference to the customs and practices of the relevant whānau, hapū or iwi—rather than as a question of law. We propose the following amendments to the definitions.

The bill as introduced provides that “participating owners” means the owners of land who participate in making a decision. We recommend clarifying the meaning of the term “participate”, to make it clear that it would include not only people who vote on a proposal, but also people who are involved in the decision-making process, even if they abstain from voting. This could include attending a meeting in person, or being involved by Skype or other communication technology.

The term “whāngai” (an individual adopted by Māori customary adoption) is defined in the bill by reference to the tikanga of the relevant iwi or hapū. As we discuss later in the context of descent relationships (clause 8), we consider that this raises potential for uncertainty. We recommend that the reference to iwi be dropped from the definition, and that whāngai status should be determined by the tikanga of the relevant hapū or whānau. In the event of doubt or inconsistency between the two, we consider that the tikanga of the whānau should prevail.

Association with land in accordance with tikanga Māori

We recommend inserting clause 7A to make the intent of the bill clearer as to who is deemed to be associated with particular land. From our discussions with submitters, it appears that provisions relating to descent relationships and eligible beneficiaries (for example, in clauses 96 and 246) could be interpreted as requiring someone to verify a direct whakapapa descent relationship to a tupuna who held a customary interest in the land pre-1840. This was not the intention.

In line with the core principles of the bill, and to avoid complexities involved in tracing lines of descent and unintended consequences arising from historical anomalies (such as the allocation of land in Mangakino, in 1925, and land in Palmerston North, in 1866 and 1867, to people from other parts of the country), we propose that assessments of association would not need to go back further than the bill’s commencement.

Descent relationships determined by tikanga Māori

Clause 8 provides that relationships of descent that involve adopted children (whether as whāngai or under the Adoption Act 1955) are to be determined by tikanga Māori. Tikanga Māori would determine whether they are regarded as descendants of their adoptive parents, their birth parents, or both. In deciding succession and preferred recipients under the bill, tikanga Māori would override anything to the contrary in the Adoption Act. This would be a change from the current Act.

A Māori Land Court order would be required as proof that a whāngai relationship exists under the relevant tikanga Māori. We understand that this would normally be a simple process where there is no opposition. If the relationship was challenged, the matter would be referred to the new dispute resolution service. If this did not resolve the issue, it could be referred back to the court.

Several submitters expressed support for using tikanga to determine whāngai relationships and legal adoptions, considering this more appropriate in legal adoptions than the legal fiction of a court deeming the relationship to be one of descent by birth. However, submitters raised several points that we believe justify some refinements to this provision.

In the bill as introduced, clause 8 states that the tikanga of the relevant iwi or hapū would determine whether a whāngai relationship would be treated as a relationship of descent. As noted earlier, we consider that the tikanga of the relevant whānau or hapū is more appropriate than iwi for determining whāngai status, and recommend that reference to iwi be removed from clause 8(2). In the event of inconsistency, we recommend that the tikanga of the whānau should prevail over that of the hapū.

Second, we consider that clause 8(2)﻿(a) raises the possibility that historical relationships would have to be proved at every link in the chain of title. We wish to avoid introducing such complexity, and accordingly recommend inserting new clause 7A.

Third, we recommend an amendment to clarify clause 8(3)﻿(c). It is not the intention that all birth relationships would need to prove a tikanga-based association. This should only be a question if the birth relationship was deemed by the Adoption Act to be “a relationship of a different kind”. Only in this case should a court order be required to determine the relationship.

Part 2—Whenua Māori / Māori land and whenua tāpui

Part 2 of the bill deals with the definition and status of Māori customary land and Māori freehold land. It also contains provisions relating to whenua tāpui, which are referred to in the 1993 Act as Māori reservations.

Apart from some technical amendments, the main changes we propose in this part are in relation to clause 39, which deals with the administering body appointed for a whenua tāpui.

Administering bodies

We recommend that the board of an administering body should comprise at least four members, rather than three as in the bill as introduced. This would ensure that decisions could not be taken by a quorum of only two people, or potentially just one person.

We recommend inserting new clause 39A to give the court the power to make an order restraining the administering body of a whenua tāpui. This would provide protection against the possibility of recklessness, incompetence, or fraud, or of an administering body acting inconsistently with the purposes of the whenua tāpui or in breach of conditions or restrictions.

Subpart 3—Kawenata tiaki whenua

We recommend that the provisions relating to kawenata tiaki whenua (a type of covenant) be moved into Part 2 from Part 4 of the bill as introduced, as they are similar in nature to whenua tāpui. They would form new clauses 44A to 44C.

Part 3—Ownership interests in Māori freehold land

Decision-making by owners of Māori freehold land

Clauses 51 to 57, together with Schedule 2, set out the processes and thresholds for agreement that would make decisions binding on all owners of Māori freehold land. The most important decisions would need to be made by a specified proportion of all of the owners. Other decisions, that did not involve permanent alienation of the land, could be made by a specified proportion of the owners who take part in making the decision. The bill refers to them as “participating owners”.

Clause 51 sets out various thresholds of participation required for different decisions by participating owners. It also provides for a second decision-making process if the required thresholds of participation are not met. (We are suggesting a change to this second-chance mechanism, which we explain later.)

We heard a range of submissions about the proposed decision-making arrangements. Several submitters supported the participating owners approach, preferring it to the subjective criteria in the current Act. They said it would overcome difficulties about getting a quorum at meetings and make it easier for owners to make decisions about their land. Various submitters commented on the levels of the thresholds: some suggested they were too high, and others too low.

We do not propose any changes to the participation thresholds. We think they are reasonable when combined with the second-chance mechanism (with our proposed amendment to it) and provisions that would allow owners—including absentee owners—to participate in decisions by proxy, or by phone or electronic means. On balance, we think the bill would make decision-making easier while still protecting the interests of absentee owners.

However, we agree with submitters that the clauses relating to decision-making are complex and confusing, and should be made clearer. We suggest the following changes.

Participation thresholds for decisions

To make the bill easier to understand, we recommend simplifying clause 51 by moving some of the provisions to new clauses 51A and 51B. For reference purposes, we also recommend inserting clause 51C which contains a table setting out all the decision-making thresholds.

Second-chance decision-making process

Clause 51(8) allows for a second decision-making process to be commenced if the participation threshold for a decision has not been met. This second-chance process would allow a binding decision to be made by a majority of the owners who participate in a meeting where a decision is proposed. We suggest an amendment to address concerns that this process could allow a small group of engaged owners to make far-reaching decisions affecting all owners of the land.

We recommend amending the process to specify that any decision made using the second decision-making process would be subject to review by the Māori Land Court, to ensure that it met the principles underpinning the legislation. The decision would not take effect unless the court confirmed not only that the decision complied with Parts 1 to 9 but also that the court was satisfied that the decision would help the owners to retain, control, occupy, or develop their land for the benefit of present and future owners.

Owners under 18 years of age

Clause 52 deals with owners of Māori freehold land who are less than 18 years old and who do not have a kaiwhakamarumaru appointed to manage their interests. It specifies that a minor in this situation could not vote on decisions and would not be counted as a participating owner in decision-making.

We recognise that this provision is based on general property law, which holds that a minor does not have contractual ability. Nevertheless, we consider that the provision is unduly restrictive, as it could allow the interests of a minor to be ignored even if they held a significant majority of the land. We recommend amending clause 52(1)﻿(b) so that it would also allow voting on behalf of the minor by a property manager who had been appointed under the Protection of Personal and Property Rights Act 1988 to manage any of the minor’s property.

Whānau trusts

Subpart 2 of Part 3 contains provisions about the establishment, operation, and termination of whānau trusts. Such trusts have been a successful tool under the current Act for whānau to collectively hold and manage their land interests.

We recommend some amendments in clause 58 to make it clearer how whānau trusts could be established.

We recommend inserting clause 70A so that the court could allow a beneficiary to withdraw their interest from the trust in exceptional circumstances. This provision is intended to assist in situations such as a trust becoming dysfunctional because relationships within the whānau have irretrievably broken down (for example, as a result of domestic violence).

We recommend various amendments in clause 71 and the insertion of a new clauses 71A to 71C to simplify the decision-making process provided for, and to provide for other trust property to be dealt with in proportion to other beneficial interests in the land.

Our recommended new clause 72A would set out responsibilities of the chief executive and Māori Trustee in respect of trust money in the event that a whānau trust was terminated.

Kaiwhakamarumaru

Subpart 3 of Part 3 deals with kaiwhakamarumaru, a person appointed by the court to manage the property of a minor or other owner needing protection. We recommend some changes in these provisions to improve the way they would operate. These changes include recommending that clause 83(1) be amended to clarify that charges by kaiwhakamarumaru would be properly incurred.

Part 4—Dispositions of Māori freehold land and other land

Meaning of preferred recipient and preferred entity

Part 4 of the bill deals with dispositions of Māori freehold land.2 It would continue the approach under the 1993 Act of limiting those who may acquire, or have preference to acquire, Māori freehold land or land interests. However, it would change some key terminology (from “preferred classes of alienees” to “preferred recipients” and “preferred entities”). It would also increase the emphasis on tikanga Māori by requiring every preferred recipient to have an association with the land in accordance with tikanga Māori. The 1993 Act does not require this association in the case of the children and descendants of owners, which perpetuates a historical anomaly that enabled non-Māori to acquire ownership interests in Māori freehold land. In many cases, depending on the applicable tikanga, this would entail a whakapapa connection, but this is not a requirement under the bill because that would impose a legal constraint on tikanga.

From our discussions with submitters, we have noted that the wording of clause 96(1)﻿(a) could be interpreted as requiring a preferred recipient to have a direct whakapapa descent relationship to a tupuna who held a customary interest in the land pre-1840. It was not the intention of the provision to require people to verify their descent back that far.

We therefore recommend replacing clause 96(1)﻿(c) with a more general provision. Our proposal would ensure that a “preferred recipient” would encompass the children, grandchildren, and other descendants of any Māori who is an owner of the land on the legislation’s commencement date. We believe this would avoid unintended consequences arising from historical anomalies, while remaining true to the core principles on which the bill is based.

Lease of a parcel of land for general purposes

Clause 128 deals with the leasing of a parcel of Māori freehold land for a purpose other than residential housing.

Short-term leases

For leases of 52 years or less, we consider that there is a misalignment between the bill’s proposed threshold for owner agreement (at least 75 percent of participating owners’ shares, regardless of the term of the lease) and the graduated threshold levels that currently apply under the Māori Assembled Owners Regulations 1995. We recommend amending this clause to specify graduated owner-agreement thresholds, depending on the term of the proposed lease, to better align it with the regulations. This change would mean that participating owners could not commit the land to a lease for a term longer than 7 years. Terms longer than 7 years would require the agreement of a proportion of all owners. We propose no changes to the rules that would apply where there is a governance body.

Long-term leases

We do not propose any changes regarding long-term leases. This clause would allow a governance body to agree to long-term leases (those with terms over 52 years) and decide any restrictions on their terms, within an overall maximum lease period of 99 years. The governance body would first need to have been authorised to enter into long-term leases by owners holding over 50 percent of the shares in the land. This is the same threshold as under the current Act, but the bill also offers owners the possibility of setting a higher threshold for owner agreement.

Where there is no governance body, the same threshold for owner agreement and 99-year maximum lease term would apply, but any lease for a term longer than 25 years would be conditional on confirmation by the Māori Land Court that it complies with the requirements of Parts 1 to 9.

Sub-leases and self-leases

To simplify matters for owners, we recommend amending clause 128(9)﻿(b) to allow owners to agree to future sub-leasing at the same time as they agree to an original lease. We also recommend amending clause 128(10) to allow for a self-lease to be assigned or sub-let to a third party if there is the level of owner agreement that would have been required had the original lease not been a self-lease.

Licenses or profits à prendre

Clause 132 deals with the granting of a licence or “profit à prendre” (a right to take something from another’s land, such as trees, crops, or minerals). In the absence of a governance body, it would require the agreement of owners holding more than a 50 percent share in the land. We recommend amending this clause to specify graduated owner-agreement thresholds, depending on the term of the proposed licence or profit à prendre. This would mean that when there is no governance body the thresholds are aligned with the new thresholds we recommend above for leases.

Kawenata tiaki whenua

As noted earlier, we recommend that clauses 137 to 139 be moved from Part 4 into Part 2 of the bill (as new clauses 44A to 44C). As kawenata (covenants) are similar in nature to whenua tāpui, the provisions more logically fit within that Part.

Part 5—Authority to act in relation to Māori freehold land

This Part contains provisions that would authorise certain persons other than the owners of Māori freehold land to act for certain purposes in relation to the land. These may be governance bodies or agents. Agents are referred to in the bill as kaiwhakahaere. Part 6 and Schedules 1, 3, and 4 are also relevant to the new governance model.

Submitters generally support the new governance model, and the flexibility it offers for governance agreements to be tailored to suit owners’ needs. Rangatōpū would be a new option for owners wanting to establish their own entity to be their governance body instead of appointing entities such as the Māori Trustee, Public Trust, or a trustee company. There is support for the proposal that existing trusts and Māori incorporations would not be required to transition into the new rangatōpū model.

Appointing a governance body

Clause 157 deals with the appointment of a governance body for a parcel of Māori freehold land. We recommend some amendments to allow for owners of several parcels of land to combine their land under one governance arrangement.

We recommend inserting new clause 159A to make it clear that a governance body would also need to comply with any obligations imposed under other law that might apply to it.

Tax matters

We recommend inserting new clause 173A covering tax matters for Māori incorporations and trusts that choose to become rangatōpū. These provisions would ensure that there were no unintended tax consequences as a result of the transfer of assets and liabilities to the rangatōpū.

Revoking the appointment of a governance body

Clause 174 would allow the owners of a parcel of Māori freehold land to revoke the appointment of a governance body for that land if 75 percent of the participating owners at a meeting voted to do so.

As introduced, this provision could create uncertainty and undermine the ability of a governance body to operate effectively, because the process could be triggered by a single owner. We see potential for disruption to governance arrangements if a single owner were able to trigger the process for revoking a governance agreement. We therefore recommend amending clause 174 to specify that a decision-making process to revoke a governance agreement would need to be proposed by at least 15 owners who collectively hold at least 5 percent of the beneficial interest in the land.

Clause 188 would allow the court to review decisions of owners to appoint or revoke the appointment of a governance body. A decision could only be set aside on grounds of procedural irregularity.

We recommend amending clause 188(2) so that an application to review such a decision would need to be proposed by at least 15 owners who collectively hold at least 5 percent of the beneficial interest in the land.

Responsibilities of kaiwhakahaere

The bill provides for the Māori Land Court to appoint a person as a kaiwhakahaere to carry out a specific purpose relating to a parcel of Māori freehold land. This is similar to the court’s jurisdiction to appoint an agent under the 1993 Act. We recommend adding paragraph 191(2)﻿(ba) to require the kaiwhakahaere to keep a written record of actions taken on the owners’ behalf.

Part 6—Operation of governance bodies

Part 6 of the bill would regulate the operation of governance bodies. Submitters welcomed the way the reforms would place greater and clearer responsibilities on governance bodies and kaitiaki. This would include stricter eligibility criteria; and clearer duties and responsibilities that would be more like those of company directors and trustees.

Submitters stressed, however, that governance bodies and kaitiaki would need to have a clear understanding of the content and implications of the new legislation. This brings us back to the point we have made earlier about the vital importance of providing adequate information and guidance about the new law before it came into force.

Powers, duties, and responsibilities

We recommend inserting new paragraph 202(1)﻿(aa) to include an express requirement for governance bodies to hold and manage an asset base for the benefit of the owners of the land being managed. Similarly, new subclause 203(aa) would insert an express requirement for a kaitiaki of a governance body to act for a proper purpose.

A governance body could sell a parcel of land only if it had first found replacement land that it would use the proceeds on (clause 104(3)). Clause 207(2) would require the governance body to go through with acquiring and/or improving the replacement land. We propose an amendment to allow a little more flexibility. We recommend amending clause 207(2) so that, if the board had failed to acquire the intended replacement land after making all reasonable efforts to do so, it could use the proceeds from the sale to acquire and/or improve other land of a similar quality.

Requests for information

We recommend amending clause 214, subclauses (4), (6), and (7), to allow a governance body to charge owners a reasonable fee for providing information. It would need to explain the charge, and an owner would be able to apply to the court if they considered the charge unreasonable.

Powers of Māori Land Court in relation to governance bodies

Clauses 216 to 218 set out what the court could do if it was satisfied that a governance body is, or might be, acting in a way that could create a serious risk for the owners.

A certain proportion of owners, set out in clause 216(5), would need to make an application for the court to act. As introduced, clause 216(5) would require an application to be made either by 15 owners or by owners who collectively hold 5 percent of the land. We recommend amending this provision so that it would require an application to be made by 15 owners who collectively hold 5 percent of the land.

Clause 218 deals with what the court may do after making an order under clause 216(2) or investigating a governance body. (Such orders may include requiring kaitiaki or officers of a governance body to file a report, provide certain documents, or appear before the court to answer questions.) However, the bill as introduced does not provide for any specific remedies if these things are not done. We recommend inserting subclause (3) to allow the court to make an order to start the process of cancelling a governance agreement; to make a restraining order to prevent a governance body, kaitiaki, or owner from engaging in conduct that would contravene the governance agreement; or to disqualify a kaitiaki.

Part 7—Administration of estates

Part 7 sets out provisions about who is entitled to Māori freehold land or an individual freehold interest in a parcel of Māori freehold land when the owner dies without leaving a will. It also sets out how the estate is to be administered.

Restrictions relating to family protection legislation

Clause 245 would continue existing restrictions under the Family Protection Act 1955 regarding who can receive interests in Māori freehold land. We consider that the basis for subclause 245(5) is out of date and inconsistent with modern law regarding marriages between Māori and non-Māori. We recommend that this subclause be changed so that pre-1952 customary marriages of mixed race are recognised.

Succession by eligible beneficiaries when owner dies intestate

Clauses 246 to 254 would change the way interests in Māori freehold land are inherited when an owner dies without leaving a will.

We propose an amendment in clause 246 regarding succession arrangements to correct an unintended oversight in the way the bill was formulated. We propose that all generations descended from great grandparents (rather than simply grandparents, as stated in the bill as introduced) would be eligible successors. As introduced, clause 246(3)﻿(e) would not achieve the policy intention, as it does not go back far enough when determining eligible beneficiaries. We recommend amending this clause so that all generations descended from great grandparents would be eligible successors.

New clause 246A would simply restructure the previous clause, for clarity.

Whānau trusts established on intestacy

To address problems of fragmentation of Māori freehold land holdings, the bill would make whānau trusts the default outcome if an owner dies without leaving a will. There is provision for families or family members to opt out of a trust and succeed individually. This would either be by agreement or, if agreement could not be reached even after dispute resolution, by applying to the Māori Land Court.

We recommend some amendments in clause 254 to set out the provisions relating to whānau trusts more clearly. For example, the beneficiaries of a whānau trust would need to appoint trustees, or the court would do so for them. Also, the declaration of trust would need to include a prohibition on the trustees disposing of the interest in the land unless the court had authorised them to do so.

We also recommend inserting clause 254A to allow a whānau trust to be combined with an existing whānau trust if they shared the same group of beneficiaries.

Part 8—Registers, jurisdiction about land, giving of notices, and other provisions

Part 8 of the bill contains provisions about registers and regulations, and various other matters. Apart from the following, the amendments we propose in this Part are mostly minor and technical.

Jurisdiction of the Māori Land Court

Clause 300 sets out the court’s jurisdiction for the purposes of Parts 1 to 9. We recommend rewording the beginning of this clause to reflect the fact that the court also exercises jurisdiction under several other Acts. We also recommend amending subclause (1)﻿(m) conferring jurisdiction to determine allegations of a breach of duty by a governance body; as introduced, this covers kaitiaki only.

We recommend inserting subclause (1)﻿(s) to provide for the court to determine whether the tikanga of the whānau, hapū, or iwi would prevail in any particular situation.

Bankruptcy arrangements

Clause 318 would require the court to make an order vesting in the Official Assignee any beneficial interest of a person who is declared bankrupt whenever the Official Assignee applies for it. This carries over a provision of the 1993 Act. We recommend streamlining this process so that the court need not be involved; instead, the Official Assignee could register the interest by transmission. Similarly, a person could get the interest back by transmission after being discharged from bankruptcy.

Regulations and fees

Clause 326 would provide for the Governor-General, by Order in Council, to make regulations for a variety of purposes under Parts 1 to 9. This would include (subclause (k)) regulations prescribing charges or fees for services or other matters under Parts 1 to 9.

The amendments we propose in this clause are purely of a minor and technical nature. However, as the level of fees to be charged under this legislation was an important issue for submitters, particularly regarding charges for services to be offered by the Māori Land Service, we wish to offer some comment.

We note that work is still under way on developing the regulations, so the fees to be charged, including by the Māori Land Service, are not yet known. We consider it very important that people can readily access the services provided for under this legislation, so the level of fees must not be prohibitive.

We have considered the bill on the basis that Māori land owners’ ability to access services would be no less than it currently is, and that fees would not be set on a full cost-recovery basis. We understand that this is the Government’s intention, and that the business case for the Māori Land Service is being developed on this basis.

Part 9—Dispute resolution

The bill would establish a new Māori land dispute resolution service to help people and groups to resolve, between themselves, disagreements and conflicts in accordance with the tikanga, values, and kawa (protocols) of the hapū associated with the relevant land. In the case of a whānau dispute, the kawa of the whānau would apply.

The new process would entail a mix of mediation (where a kaitakawaenga would help the parties to resolve their issues by agreement) and arbitration (where, if they cannot reach agreement, the parties could agree to give the kaitakawaenga the ability to make a binding decision).

Submitters supported the proposed dispute resolution process, seeing it as empowering for those involved, and preferable to the current process of taking disputes through the court. Submitters want the process to be administered through the proposed Māori Land Service, and to be free of charge.

We recommend expanding clause 328, which sets out the purpose of the dispute-resolution provisions, to incorporate the bill’s core principle (from clause 3) that disputes involving Māori land should be managed in a manner that maintains or enhances the relationships among the owners and the members of their whānau and hapū.

This Part of the bill uses the term “mātauranga takawaenga”. It is defined in clause 329 to mean a process to assist people and groups to resolve disagreements and conflicts in a manner that accords, as far as possible, with the tikanga, values, and kawa of the hapū (or whānau, in the case of whānau disputes) that is associated with the relevant land. Submitters were not comfortable with the use of this term, and we recommend that it, and the term “kawa”, not be used. Instead, we propose the insertion of subclause 328(2) to describe the terms “relevant tikanga” and “values and protocols”.

We recommend some amendments in clauses 332 to 342 to improve and clarify aspects of the process. Among other things, these changes would ensure that proper consideration is given to matching the skills of kaitakawaenga to the nature of the particular disputes they are appointed to. They would also entitle representatives to be present when kaitakawaenga who have been given the ability to make a binding decision are discussing matters with parties. The amendment to clause 340 would require the chief executive to make publicly available any general instructions issued under that provision.

Parts 10 to 15—Provisions relating to Māori Land Court and Māori Appellate Court

Parts 10 to 15 of the bill would continue the Māori Land Court and Māori Appellate Court. As we have noted in our introduction, these parts of the bill would be enacted as a separate piece of legislation.

Most submitters agreed that the court, along with the appellate court, should remain a key institution for determining matters relating to Māori land. A few submitters opposed the court entirely, based on their negative experiences with it.

Submitters had mixed views on proposed changes to the role and jurisdiction of the court arising from Parts 1 to 9. Several expressed support for a change in the court’s role, from having final discretion over a range of decisions to one of ensuring that due process and legal requirements are complied with. However, some questioned whether the proposed changes would be a cost-effective approach. While supporting the idea of a new dispute-resolution service, they suggested that current problems with the court were largely a matter of inadequate resourcing.

Other than the change discussed below, we do not propose major amendments to Parts 10 to 15 of the bill.

Appointment of Judges

Clauses 427 and 428 deal with the appointment of Judges of the Māori Land Court. For clarity, we recommend amendments to clauses 427 and 428 to make it explicit that a Judge would be appointed by the Governor-General on the advice of the Minister for Māori Development, after consultation with the Attorney-General.

We consider that this change would address some concerns that the bill would transfer responsibility for recommending appointments away from the Minister to the Attorney-General. Clause 428 would merely give the Attorney-General responsibility for publishing the processes for judicial appointments. This is in line with a recent amendment to the 1993 Act, through the enactment of the Judicature Modernisation Bill, which will come into force on 1 March 2017.

Consequential changes are recommended in clauses 432, 434, and 435.

Part 16 (Repeals and amendments) and Schedules 1–12

Part 16 would repeal Te Ture Whenua Māori Act 1993; revoke and consequentially amend certain other enactments; amend three Acts in relation to the jurisdiction and functions of the Māori Land Court; and amend three Acts in relation to rating and valuation matters. We do not propose any major changes to this Part.

Mangatu adjustments

We note that clause 483, together with clause 484, would insert a new section 52A in the Rating Valuations Act 1998, giving local authorities the power to adjust the value of Māori freehold land for rating purposes. These “Mangatu adjustments”, as they are known, result from a decision by the Court of Appeal in the judgment known as the Mangatu case.

Schedules 1–12

The Schedules to the bill set out various matters including transitional provisions, procedural and process matters, and consequential amendments to other Acts. We recommend the following relatively minor changes.

In Schedule 1, we recommend inserting clause 12(4)﻿(e) to make it clear that the Tuaropaki Trust would not become subject to the new governance body framework; instead, it would continue under the existing framework as provided in clause 23. The Tuaropaki Trust has unique features that the reforms are not intended to displace.

In Schedule 2, clause 12 deals with meetings of owners. We recommend amending subclause (1)﻿(b) as we consider that the term “proxy” is more widely understood than “nominated representative”. We recommend deleting subclause (2) dealing with the quorum for a meeting; we consider it unnecessary given other provisions in the bill setting participation thresholds for decision-making by owners.

Minority View

This Minority View is submitted by the Labour, Green, and New Zealand First Parties.

When the bill was first introduced into the House we were led to believe that it would address the vexed problem of the under-utilisation of Māori land. We believe that the bill does not do this and in fact advances the removal of some responsibilities presently held by the Māori Land Court, to a new bureaucracy yet to be established. The bill also fails to address real impediments to Māori land development as raised by landowners at consultation hui around the country.

The receipt of submissions from a very broad range of people and entities involved in Māori land use and administration opposed to the bill including Māori Land Trusts (Tuaropaki), Māori Incorporations (Wakatū Incorporation), Whānau Trusts, Judges of the Māori Land Court, Māori Women’s Welfare League, Human Rights Commission, Ngāi Tahu Māori Law Centre, NZ Law Society, PSA representing Māori Land Court staff, Professor Richard Boast QC Kensington Swan Lawyers, and individuals gave us cause for disquiet about the bill.

Extracts from written submissions who opposed the bill stated;

•

Despite the Review Panel that gave rise to this bill being tasked with assessing the extent to which the regulatory environment is enabling or inhibiting the achievement of Māori land owner aspirations, the Panel chose to develop recommendations based on “what should the law look like” rather than “what is wrong with the current law and how should it be fixed.” – Māori Women’s Welfare League (paragraph 3.4, page 3).

•

The criticism towards the function of the Māori Land Court and the current Act as being primarily responsible for the lack of utilisation and development of Māori land is entirely incorrect, unreasonable, and not supported by sufficient research. – Ngāi Tahu Māori Law Centre (paragraph 5, page 1).

•

The bill in short is supposed to empower land owners to take more control of their land and enable the exercise of rangatiratanga. It has been our experience in reviewing the bill for the purpose of making these submissions that to fully understand the workings of the bill will require a huge investment of time and effort (of many months) and a great deal of expert knowledge. Even lawyers who specialise in the field of Māori land law find the bill something of a challenge to understand. – Prof Richard Boast QC, Deborah Edmunds, Tai Ahu and David Jones, Kensington Swan Lawyers (paragraph 3.4, page 3 and paragraph 4.1, page 4).

•

The bill provides no material benefit for the Tuaropaki Trust in either the delivery of services to beneficial owners or the development of its national and international commercial interests. The Tuaropaki Trust therefore seeks a specific exclusion clause in the bill allowing the Tuaropaki Trust to continue to be governed by its trust order under Te Ture Whenua Māori Act 1993 (1993 Act) as if the 1993 Act has not been repealed. – Tuaropaki Trust (paragraphs 2 and 3, page 1).

•

Wakatū is also opposed to the bill because it adds limited to no value to existing and successful Māori incorporations. – Wakatū Incorporation (paragraphs 4 to 4i, page 2).

•

Given the Government’s human rights commitments as regards the implementation of UNDRIP (UN Declaration on the Rights of Indigenous People), the bill should both reflect and advance its principles. In the Commission’s view, the application of the UNDRIP principle of free, prior, and informed consent reinforces the (Waitangi) Tribunal’s finding that the bill presently does not have a sufficient mandate amongst Māori. – NZ Human Rights Commission (paragraphs 23 and 24, page 8).

•

The bill is a high-risk approach to critical law reform affecting the taonga tuku iho that is Māori land. The bill will undermine existing Māori property rights. Key assumptions underpinning the bill are flawed. Aspects of the bill do not align with tikanga Māori. The bill mainstreams Māori Land and the Māori Land Court. – Judges of the Māori Land Court (page 2).

A supporter of the bill, the Federation of Māori Authorities, in their submission identified 37 problematic provisions in the bill and six gaps including succession applications suggesting that these should remain with the Māori Land Court. They also commented on the ‘untested and as yet undefined’ role of the Māori Land Service. They further commented that the bill did not address the ‘real impediments’ for land utilisation, commonly referred by officials as the ‘enablers’ and that it should. We agree.

We are concerned that the complexities of the bill will not empower landowners as intended. We believe that these complexities will have the unintended effect of disenfranchising landowners, particularly those holding small shares and those living away from home or whose whereabouts is not known. The bill is prefaced on a range of assumptions taken without any evidence based research and fails to address impediments as identified by landowners at the consultation meetings.

Major Māori Land Tenure reform

This is the first significant review of the Te Ture Whenua Māori Act 1993. From the outset the policy objective has been to prioritise the utilisation of undeveloped Māori land, streamlining the consolidation of owner interests and governance decision-making processes and structures.

The initial objections raised by us at the first reading highlighted the incredibly poor process in bringing these amendments which include the lack of broad based support for the changes, the potential impact on small land owners that could disenfranchise their interest in whenua tūpuna (ancestral land), the lack of clarity and purpose of the Māori Land Service, the loss of institutional knowledge from the Māori Land Court, the shift in emphasis from protection, and development towards retention and utilisation.

We maintain that the significance of the proposed changes should uphold the principles of protection, whakapapa connection to Māori land, ahi-kaa, improved access to land-locked parcels of Māori land, improved governance support for Māori owners, improving current offer-back provisions of the Public Works Act, and addressing the rating and valuation of Māori land to improve its utilisation potential.

To a significant extent several of these issues have not been included as critical ‘fixes’ in the bill. Several of these matters have been deferred to ‘enabler’ workstreams and there has been insufficient evidence to demonstrate the level of priority to achieve the level of progress that landowners have highlighted throughout the consultation process.

Māori Land Service

Integral to achieving the objectives of this bill will be the creation of the new Māori Land Service which is currently in the wānanga design phase of the process. We are aware that a business case is being prepared for the establishment of the Māori Land Service. At this stage the case for its viability is unknown. We consider this work-stream as fundamental to addressing the core improvements to the existing process of supporting landowners, addressing matters of succession, creating new governance structures, improving the efficiency of administrative functions, and establishing a new disputes resolution service and drawing on tikanga Māori as a guiding set of values. However, we are concerned that the lack of a confirmed and budgeted business case, a transitional implementation plan, targets to achieve objectives in a timely manner, and a risk-management profile to mitigate against any unforeseen matters to aid confidence that a successful implementation can be achieved.

We believe greater emphasis should be given to support the operative intention of the proposed Māori Land Service within the Māori Land Court immediately. This would deliver greater value to those landowners who do not currently have governance arrangements and judicial involvement in the dispute resolution provisions.

Participating Owners’ Models and decision-making thresholds

We are concerned that provisions relating to the Participating Owners’ Model and decision-making thresholds are complex and confusing. The issue here is two-fold:

1.

whether the definition of ‘participating owner’ and decision-making thresholds creates an imbalance between owners

2.

whether the proposed changes will assist non-engaged landowners to organise and participate in decision-making regarding the governance, leasing, disposition, gifting of their lands, or whether these responsibilities preference larger groupings of interests and the consolidation of a corporate rather than a whānau-based model.

We believe that insufficient information has been provided to clarify the costs and potential fee setting associated with the bill. We believe that the importance of cost or fee thresholds should not prohibit access to landowners. We are uncertain that the issue of costs associated with the Māori Land Service delivery model has been fully considered and this is an implementation risk. While we were informed of the benefit of a data platform to improve the sharing and utilisation of information by the Māori Land Service, there was no detail on this project. We were informed that the proposed information data platform is currently led by Land Information New Zealand and will require a significant budget commitment and is yet to be confirmed by the Government.

Whāngai, Rangatiratanga, and other Tikanga Māori concepts

We agree in principle with the approach of retaining land within whānau and hapū who whakapapa to the whenua and the clarification of rights to whāngai in accordance with tikanga. However, we believe that this can be achieved by a simple amendment to the 1993 Act.

There are a number of roles created to support and assist whānau with their whenua. Given that the bill is about empowering whānau and rangatiratanga it could be argued that some of these roles may be too parochial in that arguably it delegates authority to another ‘body’. These roles include that of kaiwhakarite, kaitiaki, kaiwhakamarumaru, concepts not necessarily common to some Māori.

We heard from a number of Māori Incorporations, Ahu Whenua, and Māori Trusts who have been successful under the current Act. These same organisations are functioning in a manner that allows them to proceed with their aspirations under existing trust orders or in accordance with their trust deeds. By seeking to retain that approach, we recognise that rangatiratanga can be achieved under the current Act.

They argued for amendments to the existing legislation rather than wholesale reform to the principles of the Act and we agree with that approach.

Resource Management Act 1991 and the Local Government (Rating) Act 2002

We heard the objective of the bill to accord rangatiratanga to “owners” is significantly reliant on the above Acts. We note territorial and regional councils control the use of Māori land with ratings policy of Māori land the responsibility of individual councils. We would suggest exploring the viability of a National Policy Statement for the Rating of Māori Land.

Our concerns are further heightened by the fact that the Government is currently reforming both Acts and we have received no advice on the possible implication of those reforms on the bill.

Disestablishment of managerial positions within the Māori Land Court

Submitters raised the concerns of the wealth of knowledge and experience of Māori whenua whakapapa and administration that currently resides with managers within the Māori Land Court. Due to the recent job losses announced by the Ministry of Justice we sought assurances from officials that the pending losses of capability with the disestablishment of these managerial roles within the Māori Land Court, across the country, would not adversely impact on the proposed Māori Land Service. We were given those assurances. We do not share that view. Our preference would be to defer any job losses until the proposed Māori Land Service is fully operationalised.

Committee process

We note with regret that some written submissions were not available online in a timely manner; an analysis of where submitters wished to appear was not completed; nor the expertise of committee members utilised to ensure hearing venues for those who wished to appear were appropriate; some submitters did not appear who were down to appear and some who wished to appear were not down to appear. Timing for each submitter was not clearly spelt out from the outset causing some confusion for both submitters and the committee members.

Given the substantive changes to the bill since the hearing of submissions, we feel strongly that submitters should be given an opportunity to review the changes to the bill. The latest updated version of the bill has gone through numerous changes and the select committee would have benefitted from the submitters’ feedback as to the implications of those changes against the concerns they raised.

We further note that the ability for Māori freehold land to be confiscated under the Public Works Act remains and is not addressed in this bill, despite it being raised by many submitters throughout the consultation process.

The number one priority of any Māori land reform should be to protect the small amount of land that remains in Māori ownership from further loss and alienation.

Summary

From the reasons outlined above we believe the bill falls short of its intended objective to improve Māori land utilisation by creating an ‘owner led’ operating environment. Instead it reduces the powers of the Māori Land Court and moves to establish the proposed Māori Land Service. A new entity that has not been defined, budgeted for, or tested. It creates an unequal balance between owners through the ‘participating owners’ decision making thresholds’ that can potentially lead to further alienation and has failed to address Māori land development impediments (landlocked land, paper roads, land taken under the Public Works Act, and ratings) as raised by owners throughout the consultation process. The bill has gone through numerous changes, is dense, and complex to follow. Seeking views from submitters on these changes would have provided a useful set of ‘fresh’ eyes for the select committee in determining whether the bill meets its original objective.

For these considered reasons we cannot support the bill and recommend it not proceed at this time.

Appendix

Committee process

Te Ture Whenua Māori Bill was referred to the committee on 11 May 2016. The closing date for submissions was 14 July 2016. We received and considered 152 submissions from interested groups and individuals. We heard oral evidence from 47 submitters at hearings in Gisborne, Tauranga, Canterbury, and Auckland, as well as in Wellington.

We received advice from Te Puni Kōkiri and Land Information New Zealand.

Committee membership

Tutehounuku Korako (Chairperson)

Hon Chester Borrows

Marama Davidson

Kelvin Davis

Marama Fox

Joanne Hayes

Hon Nanaia Mahuta

Pita Paraone

Key to symbols used

text inserted

text deleted

Hover your cursor over an amendment for information about that
amendment. Download the PDF version
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(f)

English version

(3)

The purpose of Parts 1 to 9 is to recognise and provide for the mana and tino rangatiratanga that since time immemorial Māori have exercised and continue to exercise over their lands, resources, and taonga in accordance with tikanga Māori and, consistent with the guarantees given to Māori in Te Tiriti o Waitangi, to protect the right of owners of Māori land to retain, control, occupy, and develop their land as a taonga tuku iho for the benefit of present and future generations of owners, their whānau, and their hapū.

(c)

(d)

(e)

owners of Māori land have the right to take advantage of opportunities to develop their land for the benefit of present and future generations of owners, their whānau, and their hapū:

(f)

disputes involving Māori land should be managed in a manner that maintains or enhances the relationships between among the owners and the members of their whānau and hapū.

Māori version prevails

(5)

The English version explains the purpose and principles of Parts 1 to 9 in English, but the Māori version prevails and is not affected by the explanation.

4 Achieving purpose and recognising principles of Act

(1)

A person who exercises a power or performs a function or duty under Parts 1 to 9 must do so, as far as possible, to achieve the purpose of Parts 1 to 9.

(2)

In seeking to achieve that purpose, the person must recognise the principles of Parts 1 to 9.

(3)

This section applies, for example, to—

(a)

the court in considering or making any determination or decision under Parts 1 to 9, such as a decision—

(i)

to change the status of Māori customary land to Māori freehold land under section 16; or

(ii)

to make an order declaring that a parcel of land ceases to be Māori freehold land under section 27; or

(iii)

to make an order granting reasonable access to landlocked land under section 319; and

(b)

any chief executive who exercises a power or performs a function or duty under Parts 1 to 9.

5 Interpretation

In Parts 1 to 9, unless the context otherwise requires,—

administration has the meaning given in section 2(1) of the Administration Act 1969

administrator has the meaning given in section 2(1) of the Administration Act 1969

adoption order has the meaning given by section 2 of the Adoption Act 1955

applicable survey standards means the standards or requirements for the conduct of cadastral surveys—

(a)

set under section 49 Part 5 of the Cadastral Survey Act 2002; or

(b)

set by or under any former enactment that applied when the survey was done

asset base means the Māori freehold land and other assets and liabilities managed by a governance body under a governance agreement

association with land in accordance with tikanga Māori is a term whose meaning is affected by section 7A

charge—

(a)

means a right or interest in relation to an estate or interest in land that secures the payment of money to a person who is owed money; and

(b)

includes a charge imposed by a charging order

chief executive, in relation to any provision of Parts 1 to 9, means the chief executive of the department that, with the authority of the Prime Minister, is responsible for the administration of that provision

class of collective owners means the defined class of owners who hold a parcel of Māori freehold land in collective ownership in accordance with section 48—

(a)

for a parcel of Māori customary land, the defined class of owners who hold the parcel in accordance with tikanga Māori:

(b)

for a parcel of Māori freehold land, the defined class of owners who hold the parcel in collective ownership in accordance with section 48

computer register and computer freehold register—

(a)

have the meanings given by section 4 of the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002; and

(b)

include a certificate of title issued under the Land Transfer Act 1952

court means the Māori Land Court

Crown has the meaning given in section 2(1) of the Public Finance Act 1989 and, to avoid doubt, includes the chief executive of a department referred to in that definition

Crown land—

(a)

means land that has not been alienated from the Crown in fee simple or that is vested in the Crown or held in fee simple by the Crown; but

(b)

does not include Māori land

custodian trustee, in relation to a trust, means a trustee—

(a)

in whom the trust property is vested; and

(b)

who is not responsible for the administration of the trust

department has the meaning given in section 2(1) of the Public Finance Act 1989

dispose of means to make a disposition

disposition—

(a)

means any transaction affecting the legal or equitable ownership of an estate or interest in land, including—

(i)

any sale, gift, exchange, transfer, transmission, assignment, settlement, appointment, or creation of a trust in relation to an estate or interest in land:

(ii)

any other dealing in relation to an estate or interest in land; and

(b)

means the grant or creation, at law or in equity, of—

(i)

any lease, easement, profit à prendre, mortgage, charge, licence, or power over an estate or interest in land; or

(ii)

any other estate or interest in land; and

(c)

means a boundary adjustment, a partition, a subdivision, or an amalgamation of parcels of land or an aggregation, or a cancellation of an aggregation, of ownership of parcels of land; and

(d)

includes a disposition by a living individual, by any other person, or by will; and

(e)

includes an agreement to make a disposition, such as an agreement to the acquisition of land under the Public Works Act 1981; but

(f)

does not include any vesting of an estate or interest in land, or any creation of a trust upon vesting, by or under an Act (except for a vesting that is part of a disposition described by paragraph (c))

electronic instrument means an instrument in electronic form

electronic workspace facility has the meaning given in section 279(7) (which relates to electronic facilities approved by the chief executive for use in the preparation of certain electronic instruments to be provided under Parts 1 to 9)

eligible beneficiary, in Part 7, means a person described in section 246(2) and (3)

existing statutory body has the meaning given by section 158(3)

freehold estate—

(a)

means an estate held in fee simple or for life; but

(b)

does not include a leasehold estate, such as a lease for life

governance agreement means an agreement that complies with Schedule 4 under which a governance body manages an asset base on behalf of the owners of the Māori freehold land that is within the asset base

governance body means a body referred in section 158(1) that is party to a registered governance agreement

governance certificate means a governance certificate (seesection 167) that is issued or certified by the chief executive in accordance with the requirements that are prescribed by regulations made under Parts 1 to 9

immediate family, in relation to a person,—

(a)

means members of the person’s whānau who—

(i)

are in a close relationship with the person; or

(ii)

have, in accordance with tikanga Māori, responsibility for, or an interest in, the person’s welfare and best interests; and

(a)

(b)

intestate includes a person who leaves a will but dies intestate as to some beneficial interest in his or her real or personal property

Judge—

(a)

means a Judge of the Māori Land Court; and

(b)

includes the Chief Judge and the Deputy Chief Judge of that court

kaitiaki, in relation to a governance body or proposed governance body, means—

(a)

if the body is Public Trust, or a Māori Trust Board (as defined in section 2(1) of the Māori Trust Boards Act 1955), a member of the board of the body:

(b)

if the body is the Māori Trustee, the Māori Trustee:

(c)

if the body is a Māori incorporation, a member of the committee of management:

(d)

if the body is 1 or more trustees of a trust, a trustee (other than an advisory trustee, an associate trustee, or a custodian trustee):

(e)

in any other case, a person occupying a position in the body that is comparable with that of a director of a company

kaiwhakahaere means a person appointed by the court under section 189 to represent the owners of 1 or more parcels of Māori freehold Māori land for a specified administrative purpose, either by—

(a)

appointment under section 189 in relation to Māori freehold land; or

(b)

appointment under section 17 in relation to Māori customary land

kaiwhakamarumaru means a person appointed by the court under section 73 to manage the property of an owner needing protection

kawenata tiaki whenua means a covenant over land created under section 137 44A to preserve and protect places of cultural or historical interest or special significance according to tikanga Māori

land includes—

(a)

estates and interests in land:

(b)

buildings and other fixtures attached to the permanent structures on land:

(c)

all things growing on land:

(d)

land covered with water:

(e)

plants, trees, and timber on or under land

Māori means an individual of the Māori race of New Zealand, and includes a descendant of such an individual

Māori customary land has the meaning given by section 12

Māori freehold land—

(a)

has the meaning given by section 20; and

(b)

in Part 7, includes—

(i)

vested land within the meaning of section 2(1) of the Maori Vested Lands Administration Act 1954; and

(ii)

reserved land within the meaning of section 2(1) of the Maori Reserved Land Act 1955

Māori land means Māori customary land and Māori freehold land

Māori land register means the register of matters relating to Māori land kept by the chief executive under section 270, and includes records for—

(a)

parcels of Māori freehold land and the nature of the beneficial interests held in the land; and

(b)

governance agreements; and

(c)

rangatōpū; and

(d)

succession; and

(e)

other bodies appointed to manage land on behalf of owners

Māori reserve means—

(a)

any land vested in the Māori Trustee as, or for the purposes of, a Māori reserve; and

(b)

any land that is subject to the Maori Reserved Land Act 1955

Māori Trustee has the meaning given by section 2(3) of the Māori Trustee Act 1953

Minister means the Minister who, with the authority of the Prime Minister, is responsible for the administration of Parts 1 to 9

owner—

(a)

has the meaning given by section 7; but

(b)

in Part 7, means a person entitled to a beneficial interest

owner needing protection has the meaning given by section 74

paper instrument means an instrument in paper form

parcel, in relation to any Māori freehold land,—

(a)

means the freehold estate in a discrete area of land that—

(i)

is defined as a parcel in compliance with the applicable survey standards; or

(ii)

is identified in a court order, Crown grant, or other instrument issued under an Act for the purpose of defining a parcel and specifying the freehold ownership of the parcel:

(b)

may include, for example, a single area with 1 continuous boundary or multiple areas that are physically separate as a result of prior partitions or other actions

participate, in relation to a proposal for decision by the owners of Māori freehold land, means that an owner—

(a)

attends a meeting at which the proposal is considered,—

(i)

whether in person, via a proxy or other representative, or via any communication technology; and

(ii)

whether or not the owner votes; or

(b)

does not attend such a meeting but casts a vote on the proposal

participating owners means the owners of Māori freehold land who participate in making a a proposal for decision by the owners of the land

practitioner means a lawyer or conveyancing practitioner as those terms are defined in section 6 of the Lawyers and Conveyancers Act 2006

preferred recipient has the meaning given by section 96

private land—

(a)

means land held in fee simple by a person other than the Crown; and

(b)

includes Māori land

proxy or other representative means a person appointed as a proxy or other representative of another person in accordance with—

(a)

the governance agreement for the land, if there is an agreement that provides for the appointment of proxies or other representatives; or

(b)

in any other case, regulations made under Parts 1 to 9

Public Trust has the meaning given by section 4 of the Public Trust Act 2001

rangatōpū means a governance body registered in the Māori land register as a rangatōpū

rangatōpū certificate means a rangatōpū certificate (seesection 167) that is issued or certified by the chief executive in accordance with the requirements that are prescribed by regulations made under Parts 1 to 9

Registrar means any Registrar of the Māori Land Court

Registrar-General means the Registrar-General of Land appointed under section 4(1) of the Land Transfer Act 1952

representative entity has the meaning given by section 158(3)

requirements of Parts 1 to 9 includes the requirements of any regulations made under Parts 1 to 9

road has the meaning given by section 315(1) of the Local Government Act 1974

State highway has the meaning given by section 5(1) of the Land Transport Management Act 2003

statutory declaration means a declaration made in accordance with the Oaths and Declarations Act 1957

Surveyor-General means the Surveyor-General appointed under section 5(1) of the Cadastral Survey Act 2002

trustee company has the meaning given by section 2 of the Trustee Companies Act 1967

unpaid distribution has the meaning given in section 213(1)﻿(a)

unpaid distribution details, in relation to an unpaid distribution, means the details listed in section 213(1)﻿(b)

wāhi tapu means a place sacred to Māori in the traditional, spiritual, religious, ritual, or mythological sense

wāhi tūpuna means a place important to Māori for its ancestral significance and associated cultural and traditional values

welfare guardian has the meaning given by section 2 of the Protection of Personal and Property Rights Act 1988

whānau trust means a trust established in accordance with section 58

whāngai, in relation to a member of an iwi or a hapū, means an individual adopted by the member by Māori customary adoption in accordance with the tikanga of the iwi or hapū

whāngai means someone adopted by Māori customary adoption in accordance with the tikanga of the respective whānau or hapū

whenua tāpui means land reserved as a whenua tāpui by a declaration under subpart 2 of Part 2.

6 Meaning of individual freehold interest

(1)

In Parts 1 to 9, an individual freehold interest in a parcel of Māori freehold land means each of 2 or more beneficial interests (or shares) in the freehold estate in the parcel of land that are able to be dealt with separately from each other.

(2)

To avoid doubt,—

(a)

joint tenants who own an individual freehold interest do not have separate individual freehold interests as between themselves; and

(b)

a member of a class of collective owners that holds the freehold estate in a parcel of land does not have an individual freehold interest in the land.

Example

There are 4 equal shares in the freehold estate in a parcel of Māori freehold land. The first 3 shares are held by 1 owner each and the fourth share is held by 2 owners as joint tenants. As between the 4 shares, the owners hold the shares as tenants in common. So there are 4 individual freehold interests in the land, 1 for each share (including the 1 share held by the joint tenants).

7 Meaning of owner

(1)

This section defines owner in relation to private land.

(2)

The owner of a parcel of Māori customary land means the members of the class of persons who hold the parcel of land in accordance with tikanga Māori.

(3)

The owner of a parcel of Māori freehold land means—

(a)

the sole owner of the beneficial interest in the freehold estate in the parcel; or

(b)

each of the multiple owners (including each member of a class of collective owners) of the beneficial interest in the freehold estate in the parcel.

(4)

The owner of one of the individual freehold interests in a parcel of Māori freehold land means the individual or the joint tenants who own the interest.

(5)

The owner of a parcel of private land that is not Māori land means the legal owner of the freehold estate in the parcel.

(6)

To avoid doubt, if the trustees of a whānau trust or other trust (other than a governance body) hold a parcel of private land other than Māori customary land, or an individual freehold interest in such a parcel, the trustees are the owners of the parcel or interest.

(7)

To avoid doubt, if a kaiwhakamarumaru is managing a parcel of private land other than Māori customary land, or an individual freehold interest in such a parcel, the kaiwhakamarumaru must be treated as the owner of the parcel or interest (in accordance with section 77).

7AAssociation with land in accordance with tikanga Māori

(1)

The following persons must be treated as being associated with the relevant land in accordance with tikanga Māori for the purposes of Parts 1 to 9:

(a)

a Māori person who, at the commencement of this section, is an owner or a former owner of Māori freehold land:

(b)

a Māori person who, at the commencement of this section, is a beneficiary or former beneficiary of a trust whose trustees are or were owners of Māori freehold land:

(c)

a successor to SILNA land, as those terms are defined by section 446 of the Ngāi Tahu Claims Settlement Act 1998:

(d)

a child, grandchild, or other descendant of such an owner, beneficiary, or successor, as long as the descendant’s association with the land has not been lost in accordance with tikanga Māori.

(2)

To avoid doubt, the effect of this section is that assessments of association with land do not need to go back earlier than the commencement of this section.

8 Descent relationships determined by tikanga Māori

(1)

This section applies to a provision of Parts 1 to 9 that refers to a term that involves depends on there being a relationships of descent between people, such as a reference provision that refers to—

(b)

(a)

a whāngai relationship at any link in the chain of descent is to be treated as a relationship of descent for the purposes of the provision:

(b)

a relationship by birth, or a relationship by adoption order, that is deemed by the Adoption Act 1955 to be a relationship of a different kind is to be treated as a relationship of descent for the purposes of the provision, despite anything in that Act.

(2)

For any child who is a whāngai or the subject of an adoption order, the tikanga of the respective whānau or hapū determines whether there is a relationship of descent between the child and 1 or both of the following types of parent for the purposes of that provision:

(a)

the child’s new parents after the child became a whāngai or the subject of an adoption order:

(b)

the child’s parents before the child became a whāngai or the subject of an adoption order.

(3)

An order made by the court on any of the following matters is proof of the matter for the purposes of Parts 1 to 9:

(a)

whether a whāngai relationship exists child is a whāngai:

(b)

whether a whāngai child’s relationship with the parents described in 1 or both of subsections (2)﻿(a) and (b)is to be treated as a relationship of descent.

(c)

whether a relationship by birth, or by adoption order, is to be treated as a relationship of descent.

(4)

This section prevails over the Adoption Act 1955.

9 Evidence of applicable tikanga Māori

In any proceedings under Parts 1 to 9, any question as to the tikanga Māori that applies in a particular situation must be determined on the basis of evidence.

10 Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

Subpart 1—Whenua Māori/Māori land

Māori customary land

12 Definition of Māori customary land

(a)

(b)

(i)

before the commencement of Parts 1 to 9, the court determined to be Māori customary land; and

(ii)

immediately before the commencement of Parts 1 to 9, has not become or been determined to be land of another status; but

(c)

does not include Māori freehold land.

13 Māori customary land cannot be disposed of

(1)

An estate or interest in Māori customary land cannot be—

(a)

disposed of; or

(b)

vested or acquired under an Act or in any other way.

(2)

However, this section does not prevent—

(a)

any change in the class of collective owners who, in accordance with tikanga Māori, hold a parcel of Māori customary land, as long as the change is made in accordance with tikanga Māori:

(b)

the reservation of Māori customary land as a whenua tāpui, the cancellation of the reservation, any vesting related to the reservation or cancellation, or the grant of any lease under subpart 2:

(c)

the change in status of Māori customary land to Māori freehold land under section 16:

(d)

the creation, cancellation, or variation of an easement over Māori customary land under section 135 or 136:

(e)

the grant of reasonable access to landlocked Māori customary land by an order made under section 328 of the Property Law Act 2007 (as applied by section 319 of Parts 1 to 9).

14 Court may determine whether land is Māori customary land

(1)

The court may determine whether any land is Māori customary land.

(2)

The court may make the determination—

(a)

on its own initiative in any proceedings; or

(b)

on application by—

(i)

any person with an interest in the matter; or

(ii)

the Registrar-General; or

(iii)

the Minister.

(3)

After making its determination, the court must make an order that—

(a)

specifies the parcel or parcels comprising the land or, if the land is not in defined parcels, describes the land so that it can be identified; and

(b)

declares that the land is, or is not, Māori customary land.

(4)

If the court’s order declares that the land is not Māori customary land, it may also declare that the land is or is not Crown land or other private land.

15 Court may determine class of collective owners of Māori customary land

(1)

The court may determine the class of collective owners who, in accordance with tikanga Māori, hold a parcel of Māori customary land.

(2)

The court may make the determination—

(a)

on its own initiative in any proceedings; or

(b)

on application by—

(i)

any individual Māori or group or class of Māori who claim an interest in the land; or

(ii)

the Minister.

(3)

The class of collective owners must include all descendants of the members of the class.

(4)

After determining the class of collective owners, the court must decide under section 16 whether to change the status of the land to Māori freehold land.

(5)

If the court decides to change the status, it must make an order under section 16.

(6)

If the court decides not to change the status, it must make an order that—

(a)

specifies the parcel or parcels comprising the land or, if the land is not in defined parcels, describes the land so that it can be identified; and

(b)

defines the class of collective owners of the land; and

(c)

appoints a kaiwhakahaere for the land in accordance with section 17, if there is not one already.

(7)

The court has exclusive jurisdiction to determine the class of collective owners of Māori customary land.

(8)

To avoid doubt,—

(a)

the court must not determine that the land is held by owners in defined shares; and

(b)

if a determination has already been made under this section and the land remains Māori customary land, another determination may be made if ownership has been transferred in accordance with tikanga Māori; and

(c)

a determination under this section merely recognises, and does not change, the existing ownership.

16 Court may change status of Māori customary land to Māori freehold land

(1)

This section applies if—

(a)

the court is required to make a decision under this section after determining a class of collective owners of Māori customary land under section 15; or

(b)

the kaiwhakahaere appointed for Māori customary land under section 17 at any time applies for an order under this section.

(2)

The court must decide whether to change the status of the land to Māori freehold land.

(3)

The court must not decide to change the status unless it is satisfied that—

(a)

the chief executive, at the court’s direction, notified and held a meeting of the owners of the land in accordance with Schedule 2 to consider the proposed change of status (and that schedule applies to the proposal with any necessary modifications); and

(b)

the change of status is agreed to by more than 50% of the owners of the land who attended the meeting; and

(c)

the land comprises a parcel or parcels defined in compliance with the applicable survey standards.

(4)

If the court decides to change the status, the court must make an order changing the status of the land to Māori freehold land.

(5)

The order must—

(a)

specify the parcel or parcels comprising the land; and

(b)

define the class of collective owners of the land as determined under section 15.

(6)

If an order is made changing the status of land to Māori freehold land, the land becomes subject to the Land Transfer Act 1952 on registration of the order under that Act.

17 Kaiwhakahaere appointed for Māori customary land

(1)

This section applies if the court is required to make an order under section 15 appointing a kaiwhakahaere for Māori customary land.

(2)

The order may appoint the kaiwhakahaere to do 1 or more of the things referred to in section 190(2)﻿(a), (d), (e), (f)﻿(i), (g), (i), and (j) in relation to the land.

(3)

The kaiwhakahaere appointed by the order may also do the following in relation to the land:

(a)

receive and respond to notices on behalf of the owners:

(b)

apply to the court for an order under section 16 (court may change status of Māori customary land to Māori freehold land):

(c)

(d)

apply to the court for an order under section 31 (court order declaring private land reserved as whenua tāpui):

(e)

apply under section 327(1) of the Property Law Act for the grant of reasonable access to landlocked land (seesection 319).

(4)

Sections 189(3), 191, 192, and 195 to 201 apply to the appointment, with any necessary modifications, as if—

(a)

the appointment were made under section 189; and

(b)

section 199(1) also provided that the appointment of a kaiwhakahaere ceases if an order is made changing the status of the land to Māori freehold land.

18 Trespass or injury to Māori customary land

(1)

This section applies to proceedings in the Māori Land Court or any other court—

(a)

to recover possession of Māori customary land from any person; or

(b)

to prevent, or recover damages for, trespass or injury to the land by any person.

(2)

The proceedings may be brought only by—

(a)

a member of the class of collective owners who hold the land in accordance with tikanga Māori, if the court has determined that class; or

(b)

in any case, the following persons person on behalf of the owners of the land:

(i)

a kaiwhakahaere appointed for the land; or

(ii)

the Māori Trustee, if there is no kaiwhakahaere appointed for the land and there is no evidence that the Māori Trustee is unauthorised to act.

19 Provisions for jurisdiction about Māori customary land do not apply to common marine and coastal area

Sections 14 to 18 do not apply to land in the common marine and coastal area (as defined by section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011).

Māori freehold land

20 Definition of Māori freehold land

In Parts 1 to 9, Māori freehold land means land that—

(a)

has become Māori freehold land in accordance with Parts 1 to 9 or any other enactment, whether before or after the commencement of Parts 1 to 9; and

(b)

has not ceased to be Māori freehold land.

21 Māori freehold land may be disposed of in certain ways

An estate or interest in Māori freehold land may be disposed of in the same way as private land that is not Māori land unless the disposition is prohibited or restricted by Parts 1 to 9 or another enactment.

22 Court may determine whether land is Māori freehold land

(1)

The court may determine whether any land is Māori freehold land.

(2)

The court may make the determination—

(a)

on its own initiative in any proceedings; or

(b)

on application by—

(i)

any person with an interest in the matter; or

(ii)

the Registrar-General.

(3)

After making its determination, the court must issue a declaration that—

(a)

specifies the parcel or parcels comprising the land; and

(b)

declares that the land is, or is not, Māori freehold land.

(4)

If the court declares that the land is not Māori freehold land, it may also declare that the land is or is not Crown land or other private land.

Land becomes Māori freehold land

23 How land becomes Māori freehold land

(1)

Land becomes Māori freehold land only in the following ways:

(a)

the court makes an order under section 16 to change the status of Māori customary land to Māori freehold land:

(b)

the court makes a vesting order under section 24 in respect of land other than Māori freehold land:

(c)

the court makes an order under section 25 declaring private land to be Māori freehold land:

(d)

an exchange of land is made and land becomes Māori freehold land under section 102:

(e)

a boundary adjustment is made and land that is not Māori freehold land changes status under section 111(5) by becoming part of a parcel of Māori freehold land:

(f)

land that is amalgamated, or whose ownership is aggregated, becomes Māori freehold land under section 120 or 124:

(g)

the court makes an order under section 211 and, if the order requires a change of ownership, the relevant governance body becomes the owner of the land:

(h)

another Act expressly provides that the land becomes Māori freehold land.

(2)

To avoid doubt,—

(a)

the court may determine and declare under section 22 that land is Māori freehold land; and

(b)

land may already have been Māori freehold land at the commencement of Parts 1 to 9; and

(c)

the chief executive has no power under Parts 1 to 9 to determine and declare that land is Māori freehold land.

24 Land becomes Māori freehold land by vesting order on change of ownership

(1)

The court may, on application, make a vesting order under this section in respect of land other than Māori freehold land.

(2)

An application may be made by—

(a)

the beneficial owners of land who want the land to vest in any individual Māori or group or class of Māori; or

(b)

the registered proprietor of land that was acquired for any individual Māori or group or class of Māori; or

(c)

any of the following persons for private land that was acquired by the Crown, a local authority, or a public body for a public work or other public purpose, but is no longer required for that purpose:

(i)

the Minister of the Crown under whose control the land is held or administered:

(ii)

the chief executive of the department responsible for the administration of under the Cadastral Survey Act 2002:

(iii)

the local authority or public body that holds or administers the land; or

(d)

the Minister for Māori Development for any Crown land set aside or reserved for the use or benefit of Māori; or

(e)

any Minister of the Crown, or the registered proprietor of the land, for any Crown land not covered by another paragraph of this subsection.

(3)

An application may do 1 or more of the following:

(a)

propose the 1 or more persons in whom the land is to be vested:

(b)

specify a price to be paid for the land and any terms and conditions of payment:

(c)

propose any other conditions to be imposed by the order.

(4)

A vesting order—

(a)

must specify the parcel or parcels comprising the land; and

(b)

must vest the land in freehold—

(i)

in the 1 or more persons, and in the relative shares, determined by the court; or

(ii)

in the class of collective owners determined by the court, which must include all descendants of the members of the class; and

(c)

must vest the land so that, after the vesting, the land—

(i)

is released from any lease, licence, mortgage, easement, or other interest from which the grantee has consented to release it; but

(ii)

remains affected by any other such interest that affected it immediately before the vesting; and

(d)

may impose any conditions that the court thinks fit.

(5)

If an order is made, the land described in the order becomes Māori freehold land.

(6)

This section applies despite any other enactment that applies to the land, such as sections 40 to 42 of the Public Works Act 1981.

25 Private land other than Māori land may be declared Māori freehold land

(1)

The court may, on application, make an order declaring any private land other than Māori land to be Māori freehold land.

(2)

The application may be made by 1 or more owners of the land.

(3)

The court must make the order only if it is satisfied of the following: that—

(a)

the land is not managed under a governance agreement:; and

(b)

for land that is held by the trustees of a whānau trust or other trust,—

(i)

the beneficiaries of the trust are 1 or more Māori, or a group or class of Māori, who are associated in accordance with tikanga Māori with the area in which the land is located; and

(ii)

the application is agreed to by the trustees and does not breach the terms of the trust:; and

(c)

for other land,—

(i)

the land is beneficially owned by 1 or more Māori, or a group or class of Māori, who are associated in accordance with tikanga Māori with the area in which the land is located; and

(ii)

the application is agreed to by more than 50% of the participating owners of the land (casting votes of equal weight).

(4)

Sections 51 to 57 apply to the making of the decision that requires agreement under subsection (3)﻿(c)﻿(ii) as if the land were Māori freehold land.

(5)

The order must—

(a)

specify the parcel or parcels comprising the land; and

(b)

specify the existing owners of the land and relative shares (if any) of the owners.

(6)

See—

(a)

section 48 for how the owners of the Māori freehold land may convert it to collective ownership:

(b)

section 206 for how land that is managed under a governance agreement may become Māori freehold land.

Land ceases to be Māori freehold land

26 How land ceases to be Māori freehold land

(1)

Land ceases to be Māori freehold land only in the following ways:

(a)

the court makes an order under section 27 declaring that the land ceases to be Māori freehold land:

(b)

an exchange of land is made and Māori freehold land becomes land of another status under section 102(10):

(c)

a boundary adjustment is made and Māori freehold land changes status under section 111(5) by becoming part of a parcel of land that is not Māori freehold land:

(d)

the land changes ownership after the court makes an order under section 103 declaring that the land ceases to be Māori freehold land on that change of ownership:

(e)

another Act expressly provides that the land ceases to be Māori freehold land.

(2)

This section does not affect the court’s power to determine and declare under section 22 that land is not Māori freehold land.

(3)

To avoid doubt,—

(a)

land does not cease to be Māori freehold land merely because it no longer has Māori owners; and

(b)

the chief executive has no power under Parts 1 to 9 to determine and declare that land is not Māori freehold land.

27 Land may cease to be Māori freehold land by declaration

(1)

The court may, on application, make an order declaring that a parcel of land ceases to be Māori freehold land.

(2)

The application may be made by 1 or more owners of the land.

(3)

The court must not make an order unless it is satisfied that—

(a)

the land is not held by a class of collective owners; and

(b)

the land is not managed under a governance agreement; and

(c)

no part of the land is reserved as a whenua tāpui; and

(d)

no part of the land is subject to a kawenata tiaki whenua; and

(e)

the land does not contain any wāhi tapu or wāhi tūpuna; and

(f)

the application is agreed to by owners who together hold a 75% or more share in the land; and

(g)

the purpose of Parts 1 to 9 can be achieved more effectively if the land does not have the status of Māori freehold land.

(4)

An order must specify the parcel or parcels comprising the land.

(5)

If an order is made, the parcel of land that ceases to be Māori freehold land remains private land, but is not Māori land.

(6)

Seesection 103 for how land that is managed under a governance agreement may cease to be Māori freehold land on the change of ownership from a sale or an exchange.

High Court jurisdiction over status of land

28 High Court jurisdiction over status of land

(1)

The Māori Land Court’s jurisdiction under this or any other Act does not affect the High Court’s jurisdiction to determine anything relating to the status of land.

(2)

A determination of the High Court prevails over any conflicting declaration or determination of the Māori Land Court.

Subpart 2—Whenua tāpui

29 Preliminary provision

(1)

In sections 31 and 33, the certain purposes for which whenua tāpui may be reserved are—

(a)

a papakāinga housing site:

(b)

a marae:

(c)

a meeting place:

(d)

a recreation or sports ground:

(e)

a bathing place:

(f)

a church site:

(g)

a building site:

(h)

an urupā:

(i)

a landing place:

(j)

a fishing ground:

(k)

a spring, well, catchment area, or other source of water supply:

(l)

a timber reserve:

(m)

a place of cultural or historical interest:

(n)

a place of scenic interest:

(o)

a place of special significance according to tikanga Māori:

(p)

a wāhi tapu or wāhi tūpuna:

(q)

any other particular purpose stated in the declaration.

(2)

In this subpart, despite references to a whenua tāpui being held and managed by an administering body, a whenua tāpui over Māori customary land is controlled and managed by the administering body, but as if the administering body held the land on trust.

30 Application for court order declaring private land reserved as whenua tāpui

(1)

A person may apply to the court for an order under section 31 declaring a new whenua tāpui or the addition of land to an existing whenua tāpui.

(2)

The application may be made by—

(a)

a kaiwhakahaere appointed for the land, for a declaration relating to Māori customary land; or

(b)

1 or more owners of the land, for a declaration relating to Māori freehold land or other private land.

(3)

For the declaration of a new whenua tāpui, the application must specify—

(a)

the name of the administering body to be appointed for the whenua tāpui; and

(b)

the names of the persons who are to be the members of the administering body.

(4)

For the declaration of a new whenua tāpui for the purpose of a marae, if the persons who affiliate with the marae in accordance with tikanga Māori have appointed a marae committee, the persons specified as members of the administering body must be the members of the marae committee.

(5)

For the declaration of a new whenua tāpui for the purpose of a marae or an urupā, other than a declaration relating to Māori customary land, the application may specify that the beneficial ownership of the land is to vest in the beneficiaries of the whenua tāpui.

31 Court order declaring private land reserved as whenua tāpui

(1)

The court may, on application, make an order declaring that—

(a)

any private land is reserved as a new whenua tāpui; or

(b)

any additional private land is reserved and included in an existing whenua tāpui declared over private land.

(2)

The order must be made in accordance with this section, section 32, and (for the declaration of a new whenua tāpui) section 37.

(3)

The declaration must not apply to—

(a)

land that is managed under a governance agreement (seesection 137 44A for how a kawenata tiaki whenua may be created over such land for certain purposes); or

(b)

land that is subject to a mortgage or other charge; or

(c)

land that is subject to a lease or licence that is inconsistent with the purpose for which the land is to be reserved.

(4)

The declaration of a new whenua tāpui must reserve the land—

(a)

for the 1 or more certain purposes specified in the declaration; and

(b)

for the common use and benefit of 1 of the following classes of beneficiaries:

(i)

the owners of the land:

(ii)

Māori who belong to a class of persons specified in the declaration:

(iii)

the people of New Zealand; and

(c)

to be so that it is held and managed—

(i)

by the administering body appointed in the declaration and comprising the members specified in the declaration, which must match the administering body and members specified in the application; and

(ii)

subject to any conditions or restrictions that the court, at its discretion, specifies in the declaration.

(5)

The declaration of additional land for an existing whenua tāpui must reserve the land—

(a)

for the same purposes, and for the common use and benefit of the same class of beneficiaries, as for the existing whenua tāpui; and

(b)

to be so that it is held and managed by the same administering body, and subject to the same conditions or restrictions (if any), as for the existing whenua tāpui.

(6)

The declaration of a new whenua tāpui for the purpose of a marae or an urupā must reserve the land for the common use and benefit of Māori who belong to a class of persons specified in the declaration.

(7)

The declaration must also declare that the land vests in the beneficiaries of the whenua tāpui, but only if—

(a)

the declaration is about a new whenua tāpui to be reserved for the purpose of a marae or an urupā, and the application specified that beneficial ownership of the whenua tāpui is to vest in the beneficiaries; or

(b)

the declaration is about additional land, other than Māori customary land, for an existing whenua tāpui that is reserved for the purpose of a marae or an urupā, and the beneficial ownership of the whenua tāpui is vested in the beneficiaries.

(8)

The chief executive must give notice in the Gazette of the reservation of land for the common use and benefit of the people of New Zealand, on being provided under section 269 with a sealed copy of the order declaring the reservation (whether as a new whenua tāpui or as additional land for an existing whenua tāpui).

32 Court must be satisfied of matters for whenua tāpui on private land

(1)

The court must comply with this section before making an order under section 31 declaring a new whenua tāpui or the addition of land to an existing whenua tāpui.

(2)

The court must be satisfied that the application complies with section 30.

(3)

The court must be satisfied that,—

(a)

for a declaration relating to Māori customary land,—

(i)

the chief executive, at the court’s direction, notified and held a meeting of the owners of the land in accordance with Schedule 2 to consider the application (and that schedule applies to the application with any necessary modifications); and

(ii)

the application is agreed to by 75% or more of the owners of the land who attended the meeting; or

(b)

for a declaration relating to Māori freehold land for the purposes of a marae or an urupā, where the beneficial ownership of the land is to vest in the beneficiaries, the application is agreed to by owners who together hold a 75% or more share in the land; or

(c)

for a declaration relating to Māori freehold land in any other case, the application is agreed to by more than 50% of the participating owners of the land (casting votes of equal weight); or

(d)

for a declaration relating to other private land, the application is agreed to by the owners of the land.

(4)

If the land to be reserved is only part of a parcel and is not Māori customary land, the court must be satisfied that—

(a)

the land to be reserved is defined on a survey plan made in compliance with the applicable survey standards; or

(b)

the declaration is supported by a certificate from the Surveyor-General that the land to be reserved is adequately described or defined for the nature of the whenua tāpui and in relation to existing surveys made in compliance with the applicable survey standards.

(5)

For the reservation of land for the common use and benefit of the people of New Zealand (whether as a new whenua tāpui or as additional land for an existing whenua tāpui), the court must be satisfied that—

(a)

the relevant territorial authority consents to the reservation; and

(b)

the land does not contain a wāhi tapu or wāhi tūpuna.

33 Minister declares Crown land or other specified land reserved as whenua tāpui

(1)

The Minister responsible for Crown land or other specified land may, in accordance with this section and section 34, make a declaration that—

(a)

any Crown land or other specified land is reserved as a new whenua tāpui; or

(b)

any additional Crown land or other specified land is reserved and included in an existing whenua tāpui declared over Crown land or other specified land.

(2)

The declaration must not apply to—

(a)

land that is subject to a mortgage or other charge; or

(b)

land that is subject to a lease or licence that is inconsistent with the purpose for which the land is to be reserved; or

(c)

Crown forest land unless the reservation will not cause the Crown to breach any Crown forestry licence that affects the land.

(3)

The declaration of a new whenua tāpui over Crown land must reserve the land—

(a)

for the 1 or more certain purposes specified in the declaration; and

(b)

for the common use and benefit of Māori who belong to a class of persons specified in the declaration; and

(c)

to be so that it is held and managed—

(i)

by the administering body appointed in the declaration and comprising the members specified in the declaration; and

(ii)

subject to any conditions or restrictions that the Minister, at his or her discretion, specifies in the declaration.

(4)

The declaration of a new whenua tāpui over other specified land must reserve the land—

(a)

for the purposes of—

(i)

a place of cultural or historical interest; or

(ii)

a place of special significance according to tikanga Māori; or

(iii)

a wāhi tapu or wāhi tūpuna; and

(b)

for the common use and benefit of Māori who belong to a class of persons specified in the declaration; and

(c)

to be so that it is held and managed—

(i)

by the administering body appointed in the declaration and comprising the members specified in the declaration; and

(ii)

subject to any conditions or restrictions that the Minister, at his or her discretion, specifies in the declaration.

(5)

The declaration of additional Crown land or other specified land for an existing whenua tāpui must reserve the land—

(a)

for the same purposes, and for the common use and benefit of the same class of beneficiaries, as for the existing whenua tāpui; and

(b)

to be so that it is held and managed by the same administering body, and subject to the same conditions or restrictions (if any), as for the existing whenua tāpui.

(6)

The declaration must also declare that the land vests in the beneficiaries of the whenua tāpui, but only if—

(a)

the declaration is about a new whenua tāpui to be reserved for the purpose of a marae or an urupā; or

(b)

the declaration is about additional land for an existing whenua tāpui that is reserved for the purpose of a marae or an urupā, and the beneficial ownership of the whenua tāpui is vested in the beneficiaries.

(7)

Before making a declaration in relation to other specified land, the Minister must be satisfied that the land is as described in subsection (4)﻿(a)﻿(i) to (iii) (whichever applies).

(8)

The Minister need not make a declaration after obtaining the court’s recommendation under section 34, but if the Minister does make a declaration, the declaration must comply with the court’s recommendation of—

(a)

the name and membership of the administering body to be appointed for the whenua tāpui; and

(b)

an appropriate class of Māori persons for whose common use and benefit the whenua tāpui should be reserved.

(9)

A declaration under this section must be made by Gazette notice.

(10)

The Gazette notice is not a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

(a)

(b)

land or an interest in land that is subject to resumption under section 27B of the State-Owned Enterprises Act 1986 and is held by a State enterprise (as defined by section 2 of that Act):

(c)

land or an interest in land that is subject to resumption under section 212 of the Education Act 1989 and is held by an institution (as defined by section 159 of that Act):

(d)

land or an interest in land that is subject to resumption under section 39 of the New Zealand Railways Corporation Restructuring Act 1990 and is held by a Crown transferee company (as defined by section 2 of that Act).

34 Minister must apply for court recommendation for new whenua tāpui on Crown land or other specified land

(1)

The Minister must comply with this section before declaring a new whenua tāpui under section 33.

(2)

If the land to be reserved is only part of a parcel, the Minister must be satisfied that—

(a)

the land to be reserved is defined on a survey plan made in compliance with the applicable survey standards; or

(b)

the declaration is supported by a certificate from the Surveyor-General that the land to be reserved is adequately described or defined for the nature of the whenua tāpui and in relation to existing surveys made in compliance with the applicable survey standards.

(3)

The Minister—

(a)

must apply to the court for a recommendation of the name and membership of the administering body to be appointed for the new whenua tāpui; and

(b)

may also apply to the court for a recommendation of an appropriate class of Māori persons for whose common use and benefit the new whenua tāpui should be reserved.

(4)

The application may, but need not, specify—

(a)

a proposed name for the administering body to be appointed for the whenua tāpui:

(b)

the names of persons proposed to be members of the administering body.

(5)

The court must, on application by the Minister, make a recommendation for each matter for which recommendation was sought (and the name of the administering body and the members may differ from any proposals in the application).

(6)

For the declaration of a new whenua tāpui over Crown land for the purpose of a marae, if the persons who affiliate with the marae in accordance with tikanga Māori have appointed a marae committee, the persons recommended as members of the administering body must be the members of the marae committee.

(7)

If the Minister applies for a recommendation under subsection (3)﻿(b), the court must do the following before making the recommendation:

(a)

obtain evidence of people’s ancestral or cultural connections with the land, and give all those who claim such connections an opportunity to be heard, in order to determine an appropriate class of Māori persons for whose common use and benefit the whenua tāpui should be reserved; and

(b)

having determined the appropriate class, give its members an opportunity to be heard on the name and membership of the administering body.

35 Application for court order of declaration for existing whenua tāpui

(1)

A person may apply to the court for an order under section 36 that makes a declaration in relation to any existing whenua tāpui over any land.

(2)

The application may be made—

(a)

by the administering body of the whenua tāpui; or

(b)

by the following:

(i)

a kaiwhakahaere appointed for the land, for a declaration relating to Māori customary land; or

(ii)

1 or more owners of the land, for a declaration relating to Māori freehold land or other private land; or

(c)

for a declaration under section 36(1)﻿(d) or (e),—

(i)

by a person referred to in paragraph (a) or (b); or

(ii)

by a beneficiary of the whenua tāpui; or

(iii)

by the Minister responsible for the land, if the whenua tāpui is over Crown land or other specified land.

(3)

For a declaration under section 36(1)﻿(b) that a whenua tāpui is reserved for the purpose of a marae or an urupā, other than a declaration relating to Māori customary land, the application may specify that the beneficial ownership of the land is to vest in the beneficiaries of the whenua tāpui.

(4)

For a declaration about the membership of an administering body, the application must specify—

(a)

the name of the person who is to become a member; or

(b)

the name of the person who is to cease to be a member; or

(c)

the name of the person who is to replace a member and the name of the member who is to be replaced.

36 Court order of declaration for existing whenua tāpui

(1)

The court may, on application, make an order declaring the following in relation to any existing whenua tāpui over any land:

(a)

the reservation as whenua tāpui is cancelled for some or all of the land; or

(b)

the whenua tāpui is reserved for a different purpose; or

(c)

the whenua tāpui is reserved for the common use or benefit of a different class of beneficiaries; or

(d)

a person becomes, ceases to be, or replaces a member of the administering body appointed for the whenua tāpui; or

(e)

the conditions or restrictions imposed on how the administering body holds and manages the whenua tāpui are changed.

(2)

A declaration under subsection (1)﻿(b) must also declare that the land vests in the beneficiaries of the whenua tāpui if the declaration is about a whenua tāpui to be reserved for the purpose of a marae or an urupā and the beneficial ownership of the whenua tāpui is to vest in the beneficiaries.

(3)

The order must be made in accordance with this section and (for a declaration under subsection (1)﻿(e)) section 37.

(4)

The court must not make an order of declaration under this section unless it is satisfied of the following: that—

(a)

the application complies with section 35:; and

(b)

the declaration would have been permitted by the provision under which the whenua tāpui was first declared:; and

(c)

for a declaration relating to Māori customary land,—

(i)

the chief executive, at the court’s direction, notified and held a meeting of the owners of the land in accordance with Schedule 2 to consider the application (and that schedule applies to the application with any necessary modifications); and

(ii)

the application is agreed to by 75% or more of the owners of the land who attended the meeting:; and

(d)

for a declaration relating to Māori freehold land to be reserved for the purposes of a marae or an urupā, where the beneficial ownership of the land is to vest in the beneficiaries, the application is agreed to by owners who together hold a 75% or more share in the land:; and

(e)

for a declaration relating to Māori freehold land in any other case, the application is agreed to by more than 50% of the participating owners of the land (casting votes of equal weight):; and

(f)

for a declaration relating to other private land, or to Crown land or other specified land, that is currently reserved for the owners of the land or Māori who belong to a class of persons,—

(i)

the administering body notified and held a meeting of the beneficiaries of the whenua tāpui in accordance with Schedule 2 to consider the application (and that schedule applies to the application with any necessary modifications); and

(ii)

at least 10 beneficiaries attended the meeting; and

(iii)

the application is agreed to by more than 50% of the beneficiaries who attended the meeting:; and

(g)

for a declaration relating to other private land that is currently reserved for the common use and benefit of the people of New Zealand, the application is agreed to by the owners of the land:; and

(h)

for a declaration relating to Crown land or other specified land that is currently reserved for the common use and benefit of the people of New Zealand, the application is agreed to by the Minister responsible for the land.

(5)

In addition, for a declaration relating to private land other than Māori land, or Crown land or other specified land, to be reserved for the purposes of a marae or an urupā, where the beneficial ownership of the land is to vest in the beneficiaries, the court must not make an order of declaration unless it is satisfied that,—

(a)

for private land, the application is agreed to by the owners of the land; or

(b)

for Crown land or other specified land, the application is agreed to by the Minister responsible for the land.

(6)

In addition, if the existing whenua tāpui is subject to a lease and the declaration is under subsection (1)﻿(a), (b), or (e), the court must not make an order of declaration unless it is satisfied that,—

(a)

for a lease granted under section 40, the declaration does not affect the lease:

(b)

for a lease granted under section 41 or 42 and a declaration under subsection (1)﻿(a) or (b), there are no occupied residences under the lease:

(c)

for a lease granted under section 41 or 42 and a declaration under subsection (1)﻿(e), the declaration does not affect the lease.

(7)

The chief executive or the administering body must notify and hold a meeting for the purposes of subsection (4) if an application is made under this section.

(8)

If the court makes an order of declaration about the membership of an administering body, the order must appoint or remove members in accordance with the application.

(9)

The chief executive must give notice in the Gazette of an existing whenua tāpui becoming reserved for the common use and benefit of the people of New Zealand, on being provided under section 269 with a sealed copy of the order declaring the change of beneficiaries.

37 Court must seek and consider submissions for some orders

(1)

The court must comply with this section before—

(a)

making an order under section 31 declaring a new whenua tāpui; or

(b)

making an order under section 36 declaring that the conditions or restrictions imposed on how the administering body holds and manages an existing whenua tāpui are changed.

(2)

The court must give notice of the order it proposes to make—

(a)

directly to the applicants; and

(b)

directly to any other person whose address for notices is provided in the application; and

(c)

for a declaration about an existing whenua tāpui, directly to the administering body of the existing whenua tāpui; and

(d)

in the pānui of the court or any publication that replaces it.

(3)

The notice must—

(a)

provide details of the application; and

(b)

set out the court’s proposed order; and

(c)

invite submissions on the proposed order; and

(d)

specify the deadline by which submissions must be received.

(4)

The court must consider any submissions received by the deadline specified in the notice before finalising and making its order.

38 Effect of declarations about whenua tāpui

(1)

A declaration about a whenua tāpui by a court order takes effect when the order takes effect.

(2)

A declaration about a whenua tāpui by the Minister takes effect on the date on which the Gazette notice is published or any later date specified in the Gazette notice.

Reservation of land

(3)

When land is reserved as a whenua tāpui,—

(a)

the legal ownership of the land vests in the administering body appointed in the declaration unless the land is Māori customary land; and

(b)

the administering body holds the land in trust for the purposes for which it is reserved, for the common use and benefit of the beneficiaries, and subject to any conditions or restrictions specified in the declaration; and

(c)

a beneficiary may enter and use the land subject to—

(i)

the purposes for which the land is reserved; and

(ii)

any lease, licence, or easement over the land; and

(iii)

any reasonable conditions or restrictions imposed by the administering body; and

(d)

the land remains affected by any lease, licence, or easement that affected it immediately before the reservation; and

(e)

to avoid doubt, the land remains affected by any status or statutory regime (for example, as Crown forest land or land subject to resumption by the Crown) that affected it immediately before the reservation and that is not overridden by section 44.

(4)

When land is reserved as a whenua tāpui for the purposes of a marae or an urupā, and the beneficial ownership of the land is declared to vest in the beneficiaries of the whenua tāpui, the beneficial ownership of the land vests in those beneficiaries (who become the class of collective owners of the land, despite anything in section 48).

(5)

When land is reserved as a whenua tāpui in any other case, the beneficial ownership of the land—

(a)

is unaffected and is distinct from the interests of the beneficiaries of the whenua tāpui; and

(b)

may continue to change by succession or otherwise.

Cancellation of reservation of land

(6)

When the reservation of land as whenua tāpui is cancelled, the legal ownership of the land vests in the beneficial owners of the land unless the land is Māori customary land.

39 Administering bodies

(1)

The administering body appointed for a whenua tāpui is a body corporate.

(2)

An administering body must have a board of at least 3 4 members, each of whom—

(a)

is ordinarily resident in New Zealand (within the meaning of section 207D(3) of the Companies Act 1993); and

(b)

is eligible to be a kaitiaki of a governance body under section 184(3).

(3)

A person appointed to the board remains a member until he or she dies, resigns, or is removed or replaced.

(4)

The function of an administering body is to hold and manage the whenua tāpui for the purposes for which it is reserved, for the common use and benefit of the beneficiaries, and subject to any conditions or restrictions imposed on the administering body.

(5)

An administering body may do anything authorised by Parts 1 to 9, or anything else that a natural person may do, for the purpose of performing its function.

(6)

A person appointed as a member of an administering body is protected from civil liability, however it may arise, for any act that the person does or omits to do in fulfilment or intended fulfilment of the purpose for which the person is appointed, unless—

(a)

the terms of the person’s appointment provide otherwise; or

(b)

the act or omission is done in bad faith or without reasonable care.

(7)

The rule against perpetuities and the provisions of the Perpetuities Act 1964 do not prescribe or restrict the period during which an administering body may hold or deal with property (including income derived from property).

39ACourt order to restrain administering body

(1)

The court may, on application, make an order restraining the administering body, or a member of the administering body, of a whenua tāpui from doing anything—

(a)

inconsistently with the purposes for which the whenua tāpui is reserved; or

(b)

in breach of the conditions or restrictions imposed on how the administering body holds and manages the whenua tāpui.

(2)

The application may be made by 1 or more—

(a)

owners of the land; or

(b)

beneficiaries of the whenua tāpui; or

(c)

members of the administering body.

(3)

The court must not make the order unless it is satisfied that the administering body or member—

(a)

is or may be doing anything as described by subsection (1); or

(b)

is acting recklessly, incompetently, or fraudulently.

40 Lease of whenua tāpui for general purposes

(1)

The administering body of a whenua tāpui may grant a lease to any person over all or part of the land for the purpose of carrying out any activity, trade, business, or occupation (other than residential housing), but only in accordance with this section.

(2)

The lease must include the following terms and conditions:

(a)

the lease is granted for a term of 14 years or less:

(b)

the land or building subject to the lease must be used solely for the purpose for which the lease is granted:

(c)

if the land or building is not used solely for that purpose, the grantor may terminate the lease in accordance with the process (if any) specified in the lease or, if there is no such process, in any reasonable way:

(d)

on termination under paragraph (c), the land and all improvements on the land revert to the grantor, and no compensation is payable to the grantee.

(3)

The lease may include any other terms and conditions that the administering body thinks fit.

(3A)

The lease must be agreed to by the administering body unless it is granted under a right of renewal included in another lease.

(4)

The grant of the lease must be conditional on the court, on application by the administering body, making an order of confirmation that the grant—

(a)

complies with the requirements of Parts 1 to 9; and

(b)

is consistent with the purposes for which the whenua tāpui is reserved; and

(c)

is consistent with any conditions or restrictions imposed on how the administering body holds and manages the whenua tāpui.

(5)

The lessee’s interest under the lease may, unless the terms and conditions of the lease provide otherwise,—

(a)

be assigned; or

(b)

be subleased, but only in accordance with the provision in this subpart that restricts a lease of the sublease’s type, except that the administering body or owners may have agreed to the headlease on the basis that it is also agreement to any sublease.

(a)

(b)

the building of premises on, or transporting of premises onto, land and the occupation of the premises as a place of residence

term includes—

(a)

any further terms that may be granted under rights of renewal included in the lease; and

(b)

for a lease granted under a right of renewal, the terms of any leases from which the right of renewal derives.

41 Lease of papakāinga housing site for residential housing with rent payable

(1)

The administering body of the following whenua tāpui may grant a lease over all or part of the land for the purpose of residential housing and with rent payable, but only in accordance with this section:

(a)

a whenua tāpui reserved for the purposes of a papakāinga housing site; or

(b)

a whenua tāpui reserved for the purposes of a marae; or

(c)

a whenua tāpui reserved for the purposes of a building site that is subject to use of the buildings for residential housing.

(2)

The term of the lease must be 99 years or less, or the lease must be a periodic tenancy (as defined by section 2(1) of the Residential Tenancies Act 1986).

(2A)

The lease must be agreed to by the administering body.

(3)

The lease need not be agreed to by the owners of the land unless required by a condition or restriction imposed on how the administering body holds and manages the land.

(4)

Agreement However, agreement is not required for a lease granted under a right of renewal included in another lease.

(5)

The lessee’s interest under the lease may be—

(a)

assigned; or

(b)

subleased, but only in accordance with the provision in this subpart that restricts a lease of the sublease’s type, except that the administering body or owners may have agreed to the headlease on the basis that it is also agreement to any sublease.

42 Lease of papakāinga housing site for residential housing rent-free

The administering body of the following whenua tāpui may grant a lease over all or part of the land for the purpose of residential housing and rent-free, but only in accordance with this section:

(a)

a whenua tāpui reserved for the purposes of a papakāinga housing site; or

(b)

a whenua tāpui reserved for the purposes of a building site that is subject to use of the buildings for residential housing.

(2)

The term of the lease must be—

(a)

99 years or less; or

(b)

for the life of the person to whom it is granted.

(2A)

The lease must be agreed to by the administering body.

(3)

The lease need not be agreed to by the owners of the land unless required by a condition or restriction imposed on how the administering body holds and manages the land.

(4)

Agreement However, agreement is not required for a lease granted under a right of renewal included in another lease.

(5)

The person to whom the lease is granted must be a beneficiary of the whenua tāpui.

(6)

The lease may include a provision that allows any of the following people to occupy the premises on the leased land in addition to the grantee as long as any maximum number of occupants that is specified in the lease is complied with:

(a)

any member of the grantee’s immediate family; and

(b)

the principal caregiver of the grantee or of a member of the grantee’s immediate family.

(7)

The lease may be granted with conditions, which may include the requirement to pay any charges (but not rent) that relate to the property.

(8)

The lease is enforceable even though no rent is payable under it, despite any other enactment or rule of law.

(9)

The grantee’s interest under the lease cannot be subleased, and the unexpired term of the lease (if any) may be disposed of only in accordance with section 131 or 255.

(10)

The lease ends if the unexpired term of the lease is not disposed of under section 131 or 255 once the grantee, or a recipient under either of those provisions, dies.

43 Variation of lease of whenua tāpui

Subsection (2) applies if a lease over all or part of the land reserved as a whenua tāpui—

(a)

is to be varied to apply to additional or different land reserved as a whenua tāpui; or

(b)

is to be varied as to its term.

(2)

The variation of the lease must comply with the provision in this subpart that restricts the granting of the lease itself, as if the variation were the grant of such a lease (and not a renewal).

(3)

Subsection (4) applies if—

(a)

a lease over all or part of the land reserved as a whenua tāpui is to be varied so that the lease is for a different purpose; and

(b)

the lease was originally granted under a provision of sections 40 to 42 that is different from the provision (the other provision) that applies to leases granted for that different purpose.

(4)

The variation must comply with the other provision as if the variation were the grant of a lease for that different purpose (and not a renewal).

44 Reservation and disposition of whenua tāpui

Reservation

(1)

The provisions of this subpart override any other provision of Parts 1 to 9 or another enactment about the disposition or administration of land.

Disposition

(2)

Land reserved as whenua tāpui must not be disposed of, or vested or acquired under an Act or in any other way, but this section does not prevent—

(a)

the cancellation of the reservation of land as a whenua tāpui, or any vesting related to the reservation or cancellation of the reservation of land as a whenua tāpui, under this subpart; or

(b)

the grant of an easement over the land or for the benefit of the land, or the variation or cancellation of such an easement; or

(c)

the grant of a lease over the land under sections 40 to 42, or the assignment or vesting of the unexpired term of such a lease under section 131 or 255; or

(d)

a disposition of an individual freehold interest in the land separately from the other individual freehold interests in the land.

(3)

The grant of a lease over land reserved as a whenua tāpui is not a subdivision of land for the purposes of section 11 or Part 10 of the Resource Management Act 1991.

Subpart 3—Kawenata tiaki whenua

44AKawenata tiaki whenua over parcel

(1)

A kawenata tiaki whenua may be created over all or part of a parcel of Māori freehold land, or other land, managed under a governance agreement (the affected area), but only in accordance with this section.

(2)

The kawenata tiaki whenua must be created by an instrument that is agreed to by the governance body that manages the land.

(3)

The kawenata tiaki whenua must state that its purpose is to ensure that the affected area is managed so as to preserve and protect—

(a)

a place of cultural or historical interest; or

(b)

a place of special significance according to tikanga Māori.

(4)

The kawenata tiaki whenua must state that it lasts forever or for a specified term.

(5)

The kawenata tiaki whenua may include any conditions on the use of the affected area that—

(a)

further the purpose of the kawenata tiaki whenua; or

(b)

enable the governance body to manage the affected area alongside activities on land adjacent to the affected area, but only if the conditions are not inconsistent with the purpose of the kawenata tiaki whenua.

(6)

If the affected area is only part of a parcel,—

(a)

the affected area must be defined on a survey plan made in compliance with the applicable survey standards; or

(b)

the kawenata tiaki whenua must be supported by a certificate from the Surveyor-General that the affected area is adequately described or defined for the nature of the kawenata tiaki whenua and in relation to existing surveys made in compliance with the applicable survey standards.

44BCancellation or variation of kawenata tiaki whenua

(1)

A kawenata tiaki whenua over all or part of a parcel of land may be cancelled or varied, but only in accordance with this section.

(2)

The kawenata tiaki whenua may be cancelled or varied by an instrument that is agreed to by the governance body that manages the land.

(3)

If the land is no longer managed by a governance body, the kawenata tiaki whenua may be cancelled or varied by an order of the court that may be made—

(a)

on application by an owner of the land, or on the court’s own initiative in determining an application under section 227 for an order cancelling a governance agreement; and

(b)

only if the cancellation or variation is agreed to by owners who together hold more than 50% of the participating owners’ total share in the parcel.

44CEffect and notation of kawenata tiaki whenua

(1)

A kawenata tiaki whenua created under section 44A—

(a)

is a covenant that runs with and binds the land comprising the affected area; and

(b)

is an interest in land for the purposes of the Land Transfer Act 1952.

(2)

The governance body that manages the land must lodge with the Registrar-General the instrument that creates, cancels, or varies a kawenata tiaki whenua.

(3)

On receiving the instrument, the Registrar-General must,—

(a)

for the creation or variation of a kawenata tiaki whenua, record a notation of the kawenata tiaki whenua or variation on the computer freehold register for the land; or

(b)

for the cancellation of a kawenata tiaki whenua, remove any notation of the kawenata tiaki whenua from the computer freehold register for the land.

(4)

To avoid doubt, if the land subject to a kawenata tiaki whenua is no longer managed by a governance body, the Registrar-General must register in accordance with section 289 an order that cancels or varies the kawenata tiaki whenua (after the Chief Registrar provides the order to the chief executive under section 269).

Part 3 Ownership interests in Māori freehold land

Subpart 1—Ownership and decision making

Introductory provisions

45 Example of multiple owners of parcel of Māori freehold land

(1)

This section describes an example of ownership of a parcel of Māori freehold land where there are multiple owners who are tenants in common.

(2)

The owners together hold the beneficial interest in the freehold estate in the parcel. Each owner holds an individual freehold interest.

(3)

If a governance body is appointed to manage the land, the governance body becomes the legal owner of the parcel, but the owners retain the beneficial interest (or ownership).

46 Presumption of tenancy in common and equal sharing where multiple owners

(1)

If there are multiple owners, other than a class of collective owners, of the beneficial interest in the freehold estate in a parcel of Māori freehold land, the following presumption applies:

(a)

the owners hold beneficial interests in the land as tenants in common; and

(b)

each owner’s beneficial interest is an equal share of the land.

(2)

However, the presumption does not apply if there is proof in the Māori land register or elsewhere that it does not apply.

47 Rights of owners

(1)

Every owner of Māori freehold land is entitled—

(a)

to engage in decisions relating to the land:

(b)

to be informed about the land, including its use and management:

(c)

to be heard in any proceedings relating to the land:

(d)

to be recognised and acknowledged as an owner of the land.

(2)

However, the rights are subject to any provisions of Parts 1 to 9 that provide otherwise. For example,—

(a)

if the land is managed by a governance body,—

(i)

the entitlement to engage in decisions relating to the land is subject to the provisions of the governance agreement; and

(ii)

the right to receive grants or distributions is subject to any discretion of the governing body specified in the governance agreement and the entitlement of any other person to receive the grants or distributions, whether in accordance with a provision of Parts 1 to 9 or any other rule of law; and

(b)

if Parts 1 to 9 or the rules of the court authorise the court to conduct proceedings without holding a formal sitting or without hearing an owner or any other person in open court, the owner or person is not entitled to be heard in that manner.

(3)

Subsection (1) does not limit or affect other rights that owners may have at law or in accordance with tikanga Māori.

Collective ownership

48 Conversion to collective ownership of Māori freehold land

(1)

A parcel of Māori freehold land that is owned by tenants in common or joint tenants may be converted to collective ownership, but only in accordance with this section.

(2)

A decision to convert the ownership of the land must be agreed to,— by owners who together hold a 75% or more share in the land.

(a)

for a parcel owned by tenants in common, by owners who together hold a 75% or more share in the land; or

(b)

for a parcel owned by joint tenants, by all of the owners.

(3)

The decision must define the class of collective owners in 1 of the following ways:

(a)

as the named persons who, immediately before conversion, were the living owners of the land or were entitled to succeed to any deceased owner’s interest in the land, and the descendants of the named persons:

(b)

as named persons who are associated with the land in accordance with tikanga Māori, and their descendants, as long as the class also includes every person described in paragraph (a):

(c)

as the descendants of 1 or more named tūpuna, as long as the class also includes every person described in paragraph (a).

(4)

The decision may include 1 or more other requirements as to the terms of the collective ownership.

(5)

The decision has no effect unless the court, on application by an owner of the land, makes an order of confirmation that the conversion complies with the requirements of Parts 1 to 9.

49 Effect of conversion to collective ownership

(1)

This section applies if a parcel of Māori freehold land is converted to collective ownership under section 48.

(2)

The beneficial ownership of the parcel is vested in the defined class of collective owners.

(3)

If any beneficial interests in the parcel were held under a whānau trust and the trust has no other trust property, the trust is terminated on the date on which the beneficial ownership is vested in the class of collective owners.

50 Collective owner has no separate interest

(1)

A collective owner of a parcel of Māori freehold land has no interest in the land that is able to be dealt with separately from the interests of the other collective owners.

(2)

This section applies whether the person became, or was determined to be, a collective owner of the parcel—

(a)

by conversion to collective ownership under sections 48 and 49; or

(b)

by an order of the court (for example, under section 16 or 24); or

(c)

in accordance with an allocation scheme for a partition or an amalgamation.

How owners of Māori freehold land make decisions

51 Decisions by specified majority of owners of Māori freehold land

(1)

This subpart applies to a decision relating to a parcel of Māori freehold land if Parts 1 to 9 or a governance agreement requires that the decision be agreed to—

(a)

by owners who together hold a specified majority share in the land (for example, more than a 50% share); or

(b)

by owners who together hold a specified majority of the participating owners’ total share in the land (for example, more than 50% of that total share); or

(c)

by a specified majority of the participating owners of the land (casting votes of equal weight).

Decision-making process

(2)

If the parcel is managed under a governance agreement, the decision must be made using the decision-making process required by the agreement.

(3)

If the parcel is not managed under a governance agreement,—

(aa)

the decision must be made using the decision-making process set out in Schedule 2, unless paragraph (a) or (b) applies:

(a)

where the whole parcel is owned by 1 person or by joint tenants and paragraph (b) does not apply, the decision may be made by whatever process the owners choose; and:

(b)

where the whole parcel is owned by the trustees of a whānau trust or other trust or by an incorporated body, and the terms of the trust or the constitutional documents of the body include a decision-making process, the decision must be made using that process; and.

(c)

in any other case, the decision must be made using the decision-making process set out in Schedule 2.

Participation thresholds

(4)

The participation thresholds that must be satisfied for participating owners of a parcel of land to validly agree to a decision under Parts 1 to 9 or a governance agreement—

(a)

are the thresholds specified in subsections (6) and (7); and

(b)

are subject to the exception specified in subsection (8).

(5)

However, if the parcel is managed under a governance agreement that provides for other participation thresholds or exceptions, those other thresholds or exceptions apply instead.

(6)

If a decision is about a parcel owned by tenants in common, and—

(a)

there are 10 or fewer owners, all of the owners must participate:

(b)

there are more than 10 but not more than 100 owners, there must be participation by at least 10 owners whose individual freehold interests total a 25% or more share in the parcel:

(c)

there are more than 100 but not more than 500 owners, there must be participation by at least 20 owners whose individual freehold interests total a 25% or more share in the parcel:

(d)

there are more than 500 owners, there must be participation by at least 50 owners whose individual freehold interests total a 10% or more share in the parcel.

(7)

If a decision is about a parcel owned by a class of collective owners,—

(a)

at least 20 owners must participate; but

(b)

all the owners must participate if the class is known to have fewer than 20 members.

(8)

However, if the participation threshold for a decision is not satisfied,—

(a)

a second decision-making process for the decision may be commenced within 20 working days after the day on which the level of owner participation in the first decision-making process was calculated (which may be the day on which voting on the proposal closes or the day on which owners consider the proposal, if the proposal does not proceed to a vote because the required quorum of owners is not present); and

(b)

there is no participation threshold for the second decision-making process, as long as—

(i)

the applicable decision-making process is followed as if the decision were a new decision; and

(ii)

the second decision-making process is notified to owners in a way that clearly explains that the resulting decision will be valid if it is agreed to by the required majority of the participating owners, irrespective of how many owners participate in making the decision; and

(c)

if the applicable decision-making process includes a separate quorum requirement, a failure to satisfy the quorum requirement does not invalidate the decision.

Specified majority requirements

(9)

A requirement for agreement by owners of a parcel of Māori freehold land (whether all of the owners or only the participating owners) is satisfied as follows:

(aa)

where the whole parcel is not owned by 1 person or by joint tenants, by satisfying the requirements of whichever of sections 54 to 56 applies:

(a)

where the whole parcel is owned by 1 person, by that person making the decision; and:

(b)

where the whole parcel is owned by joint tenants, by all of the joint tenants agreeing to the decision; and.

(c)

in any other case,—

(i)

by satisfying the requirements of whichever of sections 54 to 56 applies; or

(ii)

if sections 54 to 56 do not apply because the requirement specifies a percentage majority other than 50% or 75%, by satisfying the requirements of whichever of sections 54 to 56 applies as if their references to 50% were references to that other percentage.

(10)

See the following provisions for the specified majorities of owners who must agree to certain decisions about Māori freehold land:

(a)

clause 13 of Schedule 4: sets out the minimum specified majorities required under a governance agreement (for land that is managed by a governance body):

(b)

section 51C: summarises the specified majorities required by Parts 1 to 9 (often for land that is not managed by a governance body).

51AParticipation thresholds

(1)

The participation thresholds that must be satisfied for participating owners of a parcel of land to validly agree to a decision under Parts 1 to 9 or a governance agreement—

(a)

are the thresholds specified in this section; but

(b)

are subject to the exception specified in section 51B (for a second decision-making process).

(2)

However, if the parcel is managed under a governance agreement that provides for different participation thresholds or exceptions, those thresholds or exceptions apply instead.

(3)

If a decision is about a parcel owned by tenants in common, and—

(a)

there are 10 or fewer owners, all of the owners must participate:

(b)

there are more than 10 but not more than 100 owners, there must be participation by at least 10 owners whose individual freehold interests total a 25% or more share in the parcel:

(c)

there are more than 100 but not more than 500 owners, there must be participation by at least 20 owners whose individual freehold interests total a 25% or more share in the parcel:

(d)

there are more than 500 owners, there must be participation by at least 50 owners whose individual freehold interests total a 10% or more share in the parcel.

(4)

If a decision is about a parcel owned by a class of collective owners,—

(a)

at least 20 owners must participate; but

(b)

all the owners must participate if the class is known to have fewer than 20 members.

51BSecond decision-making process

(1)

If the participation threshold for a decision is not satisfied under section 51A, a second decision-making process for the decision may be carried out in accordance with this section (as long as a governance agreement does not exclude this exception).

(2)

The second decision-making process must start within 20 working days after the day on which the level of owner participation in the first decision-making process was calculated (for example, the day on which voting on the proposal closed).

(3)

There is no participation threshold for the second decision-making process, as long as—

(a)

the applicable decision-making process is followed as if the decision were a new decision; and

(b)

the second decision-making process is notified to owners in a way that clearly explains its effect (that is, that the resulting decision will be valid if it is agreed to by the required majority of the participating owners, regardless of how many owners participate, and it is confirmed by court order).

(4)

If the applicable decision-making process includes a separate quorum requirement, a failure to satisfy the quorum requirement does not invalidate the decision.

(5)

The decision is valid only if the court, on application, makes an order of confirmation that—

(a)

the decision complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the decision will assist the owners to retain, control, occupy, or develop their land for the benefit of present and future owners.

51CSummary of specified majorities of owners who must agree to decisions about Māori freehold land

(1)

The table in this section summarises the specified majorities of owners who must agree to decisions about Māori freehold land under certain provisions of this Act.

(2)

A provision prevails if it conflicts with the table.

(3)

Many of the specified majorities that are about dispositions apply only if the land is not managed under a governance agreement. But if land is managed under a governance agreement, that agreement may itself require the governance body to obtain the agreement of a specified majority of owners (seeclause 13 of Schedule 4).

(4)

Here is the table:

Matter for decision by owners

Required level of owner agreement

Provision

Status as Māori freehold land

Order declaring that land ceases to be Māori freehold land

Owners with ≥75% share in land

Section 27(3)﻿(f)

Whenua tāpui and kawenata tiaki whenua

Order declaring whenua tāpui for purposes of marae or urupā, with beneficial ownership vesting in beneficiaries

Owners with ≥75% share in land

Section 32(3)﻿(b) or 36(4)﻿(d)

Order declaring whenua tāpui, or declaring certain matters for whenua tāpui, in any other case

>50% of participating owners (casting votes of equal weight)

Section 32(3)﻿(c) or 36(4)﻿(e)

Order cancelling or varying kawenata tiaki whenua

Owners with >50% of participating owners’ total share in land

Section 44B(3)﻿(b)

Collective ownership

Conversion to collective ownership

Owners with ≥75% share in land

Section 48(2)

Disposition—sale, exchange, gift, etc

Offer of land for sale

Owners with ≥75% share in land

Section 100(4)﻿(a)

Exchange of land

Owners with >50% share in land

Section 102(6)

Gift of land

Owners with ≥75% share in land

Section 105(3)

Certain dispositions of land under enactments

Owners with ≥75% share in land

Section 107(3)﻿(b)

Disposition—boundary adjustment, partition, amalgamation, aggregation

Boundary adjustment that changes area of land by ≥2%

Owners with >50% share in land

Section 110(4)﻿(a)﻿(ii)

Boundary adjustment that changes area of land by <2%

Owners with ≥75% of participating owners’ total share in land

Section 110(4)﻿(a)﻿(iii)

Partition of land (not by mortgagee)

Owners with >50% share in land

Section 113(4)﻿(b)

Amalgamation of land

Owners with >50% of participating owners’ total share in land

Section 118(4)﻿(b)

Aggregation of ownership of land

Owners with ≥75% of participating owners’ total share in land

Section 122(3)﻿(b)

Cancellation of aggregation of ownership of land

Owners with ≥75% of participating owners’ total share in land

Section 125(3)﻿(b)

Disposition—lesser interests

Lease of land for general purposes for ≤7 years

Owners with ≥75% of participating owners’ total share in land

Section 128(3A)﻿(a)

Lease of land for general purposes for ≤25 years but >7 years

Owners with ≥25% share in land

Section 128(3A)﻿(b)

Lease of land for general purposes for >25 years

Owners with >50% share in land

Section 128(3A)﻿(c)

Lease of land for residential housing rent-free

Owners with ≥75% of participating owners’ total share in land

Section 130(3)﻿(b)

Licence or profit à prendre over land for ≤7 years

Owners with ≥75% of participating owners’ total share in land

Section 132(3A)﻿(a)

Licence or profit à prendre over land for ≤25 years but >7 years

Owners with ≥25% share in land

Section 132(3A)﻿(b)

Licence or profit à prendre over land for >25 years

Owners with >50% share in land

Section 132(3A)﻿(c)

Mortgage or charge over land

Owners with ≥75% share in land

Section 133(2)﻿(b)

Easement over land or for benefit of land

Owners with >50% share in land

Section 135(2)﻿(b)

Cancellation or variation of easement over land or for benefit of land

Owners with >50% share in land

Section 136(2)﻿(b)

Kaiwhakahaere

Appointment of kaiwhakahaere for land for agreed purpose

Owners with ≥75% of participating owners’ total share in land

Section 190(2)﻿(l)

Governance body

Approval of governance agreement for land

Owners with >50% of participating owners’ total share in land

Clause 6(3), 10(5), 15(5), or 19(5) of Schedule 3

Register matters

Change to name of land

>50% of participating owners (casting votes of equal weight)

Section 288(6)﻿(a)﻿(ii)

Registration of whenua tapui in name of tupuna

Owners with ≥75% of participating owners’ total share in land

Section 292(5)﻿(b)

Road or roadway

Order vesting stopped road in owners of adjoining land

>50% of participating owners (casting votes of equal weight)

Section 299(5)﻿(b)

Order varying roadway’s alignment over land

>50% of participating owners (casting votes of equal weight)

Clause 37(5)﻿(c)﻿(ii) of Schedule 1

Order cancelling instrument of title and vesting roadway in owners of adjoining land

>50% of participating owners (casting votes of equal weight)

Clause 38(3)﻿(b) of Schedule 1

52 Minor cannot vote on decisions and is not counted as participating owner

(1)

This section applies to an owner of Māori freehold land who if—

(a)

the owner is under 18 years of age; and

(b)

does not have a kaiwhakamarumaru appointed to manage his or her beneficial interest in the land.

(b)

the owner’s beneficial interest in the land is not managed by a kaiwhakamarumaru and is not subject to a property order under the Protection of Personal and Property Rights Act 1988.

(2)

The owner—

(a)

may participate in a meeting of owners about any decision relating to the land; but

(b)

cannot vote on the decision.

(3)

The owner is not a participating owner in relation to the decision, and the owner’s share is not counted in the participating owners’ total share in the land (see, for example, section 51(1)﻿(b) and (c)).

(4)

To avoid doubt, the owner’s share is still counted in any calculation about a specified majority share in the land (see, for example, section 51(1)﻿(a)).

Example

A parcel of Māori freehold land has 10 owners who are tenants in common with equal shares, but this section applies to 2 of the owners. Only the other 8 owners can vote on any decision relating to the land. If 6 of those 8 owners vote in favour of a decision, the decision—

is agreed to by owners who together hold a 60% share in the land; and

is agreed to by owners who together hold a 75% share of the participating owners’ total share in the land; and

is agreed to by 75% of the participating owners.

53 Voting for individual freehold interest owned by joint tenants

(1)

This section applies for the purposes of voting under sections 54 to 56 in relation to any land with individual freehold interests.

(2)

If an individual freehold interest is owned by joint tenants, the joint tenants are treated as if they were the 1 owner of the interest.

(3)

The vote is counted for that interest if made by only 1 joint tenant or if the same vote is made by 2 or more joint tenants but is not counted if the joint tenants make conflicting votes.

(4)

SeePart 9 for how a dispute between joint tenants may be referred to dispute resolution.

54 Agreement by owners with >50% or ≥75% share in land

(1)

A requirement for agreement by owners who together hold more than a 50% share in the land is satisfied if the decision is agreed to by owners whose individual freehold interests total more than a 50% share in the land.

(2)

A requirement for agreement by owners who together hold a 75% or more share in the land is satisfied if the decision is agreed to by owners whose individual freehold interests total a 75% or more share in the land.

(3)

A requirement for the agreement of any majority of all of the owners of land cannot be satisfied for land owned by a class of collective owners.

(4)

This section also applies to a requirement that specifies a percentage majority other than 50% or 75%—subsection (2) applies as if the references to 75% were to that other percentage.

55 Agreement by owners with >50% or ≥75% of participating owners’ total share in land

(1)

A requirement for agreement by owners who together hold more than 50% of the participating owners’ total share in the land is satisfied if the decision is agreed to as follows:

(a)

for land owned by tenants in common, by owners whose individual freehold interests total more than a 50% share of all the participating owners’ total share in the land:

(b)

for land owned by a class of collective owners, by more than 50% of the participating owners (casting votes of equal weight).

(2)

A requirement for agreement by owners who together hold 75% or more of the participating owners’ total share in the land is satisfied if the decision is agreed to as follows:

(a)

for land owned by tenants in common, by owners whose individual freehold interests total a 75% or more share of all the participating owners’ total share in the land:

(b)

for land owned by a class of collective owners, by 75% or more of the participating owners (casting votes of equal weight).

(3)

This section also applies to a requirement that specifies a percentage majority other than 50% or 75%—subsection (2) applies as if the references to 75% were to that other percentage.

A requirement for agreement by more than 50% of the participating owners of the land (casting votes of equal weight) is satisfied if the decision is agreed to by more than 50% of the participating owners.

(2)

In a vote to which this section applies, if the parcel or an individual freehold interest is held by the trustees of a whānau trust or other trust (other than a governance body), each of the beneficiaries of the trust is treated as an owner of the parcel or interest in place of the trustees for the purposes of voting.

(3)

This section applies regardless of how the land is owned (whether by tenants in common or a class of collective owners).

(4)

This section also applies to a requirement that specifies a percentage majority other than 50%—subsection (1) applies as if the references to 50% were to that other percentage.

57 Effect of decisions

A decision made in accordance with this subpart binds all of the owners of the land to which the decision relates, whether or not all of the owners participated in making the the proposal for decision.

Subpart 2—Whānau trusts

Establishment of whānau trust

58 Owner of Māori freehold land may establish whānau trust

(1)

A whānau trust may be established only in accordance with this section.

(2)

The purpose of a whānau trust is to hold and manage beneficial interests in Māori freehold land and other property for the benefit of the trust’s beneficiaries.

(3)

The trust must be established under—

(a)

section 59(whānau trust operational while owner or owners living) (which provides for a whānau trust to operate while an owner is or owners are living); or

(b)

section 60 (whānau trust operational on death of owner) (which provides for a whānau trust to operate after the death of an owner); or

(c)

section 247 (which provides for a whānau trust to be established on intestacy); or

(d)

section 248(2) (which provides that a family arrangement on intestacy may provide for certain interests to be vested in the trustees of a whānau trust); or

(e)

section 254A (which provides for certain interests to be vested in the trustees of an existing whānau trust on intestacy); or

(f)

section 262(3) (which provides that a family arrangement made by the beneficiaries of a testamentary gift may provide for certain interests to be vested in a whānau trust).

59 Whānau trust (operational to operate while owner or owners living)

(1)

The sole owner of, or the owner of an individual freehold interest in, a parcel of Māori freehold land may declare that his or her beneficial interest in the land is to be held by the trustees of a whānau trust for the benefit of the owner and—

(a)

the owner’s descendants (including those yet to be born); or

(b)

1 or more preferred recipients and the descendants of those preferred recipients (including those yet to be born); or

(c)

a combination of persons described in paragraphs (a) and (b).

(2)

Alternatively, the sole owners of, or the owners of individual freehold interests in, a parcel or parcels of Māori freehold land who are members of the same whānau may declare their beneficial interest interests to be held by the trustees of a whānau trust for the benefit of the owners and—

(a)

the owners’ descendants (including those yet to be born); or

(b)

1 or more preferred recipients and the descendants of those preferred recipients (including those yet to be born); or

(c)

a combination of persons described in paragraphs (a) and (b).

(3)

Whānau trust property may include the following:

(a)

the beneficial interest in 1 or more parcels of Māori freehold land:

(b)

the beneficial interest in 1 or more individual freehold interests in a parcel or parcels of Māori freehold land:

(c)

the beneficial interest in individual freehold interests in parcels of Māori freehold land of more than 1 owner if the owners are siblings:

(d)

other property, including other land.

(4)

The declaration of the whānau trust must comply with requirements prescribed in regulations made under Parts 1 to 9.

60 Whānau trust (operational on to operate after death of owner)

(1)

The sole owner of, or the owner of an individual freehold interest in, a parcel of Māori freehold land may declare by will that, after the owner’s death, his or her beneficial interest in the land is to be held by the trustees of a whānau trust for the benefit of all or any of the beneficiaries described in section 59(1)﻿(a) to (c).

(2)

Whānau trust property may include any of the property described in section 59(3)﻿(a), (b), and (d).

(3)

The declaration of the whānau trust must comply with requirements prescribed in regulations made under Parts 1 to 9.

Operation of whānau trust

61 Effect of establishing whānau trust

(1)

A whānau trust is established takes effect on the date that the trust is entered in the Māori land register.

(2)

Trust property vests in the trustees,—

(a)

in the case of a vesting order, on the date of the court order; or

(b)

in all other cases, on the date that the trust is entered in the Māori land register.

(3)

The trustees must deal with trust property in accordance with any conditions or restrictions set out in the declaration of trust (for example, if a declaration of trust prohibits the sale of an interest, the trustees must vote, in any decision-making process of the owners of the land, against the a resolution to sell the land).

(4)

If the trustees hold an interest in Māori freehold land that is managed under a governance agreement, any amount payable by the governance body to the owners of the land by way of distribution under section 212(1)﻿(a) must be paid to the trustees.

(5)

Subsection (3) does not prevent a governance body from paying an amount by way of a grant under section 212(1)﻿(b) directly to 1 or more beneficiaries of a whānau trust.

62 Trustees of whānau trusts

(1)

Any legal person person (whether an individual or a legal entity) may be appointed as a trustee of a whānau trust.

(2)

However, if an individual is appointed, he or she must be eligible to be a kaitiaki of a governance body under section 184(3).

63 Powers and responsibilities of trustees of whānau trusts

(1)

The trustees of a whānau trust must—

(a)

administer the trust property—

(i)

in a manner that furthers the purpose of the trust (as specified in section 58(2)); and

(ii)

in accordance with the declaration of trust; and

(b)

keep beneficiaries informed about the affairs of the trust and any matters affecting the trust property; and

(c)

comply with any other function or duty under any enactment or rule of law that applies to a trustee.

(1A)

The trustees must not dispose of an interest in Māori freehold land unless the declaration of trust expressly authorises them to do so.

(2)

Provided they act in accordance with subsection (1), the trustees may,—

(a)

at any time after the trust is established, acquire other property to be held for the purposes of the trust; and

(b)

invest any amount they receive by way of distribution or other income and are not bound to distribute any of the amounts to beneficiaries.

(3)

In subsection (2)﻿(a), acquire includes purchase or acquire by way of gift.

64 Whānau trusts to be entered in Māori land register

(1)

The trustees of a whānau trust must apply to the chief executive to have the trust entered in the Māori land register promptly after—

(a)

the declaration of trust is made, for a trust established under section 59; or

(b)

administration of the owner’s estate has been granted, for a trust established under section 60.

(1)

The initial trustees of a whānau trust must apply to the chief executive to have the trust entered in the Māori land register promptly after—

(a)

administration of the owner’s estate has been granted, for a trust established under section 60; or

(b)

the initial trustees agree to be appointed, in all other cases.

(2)

An application must include—

(a)

a copy of the declaration of the whānau trust (and, for a trust established under section 60, a copy of the person’s death certificate and any instrument granting administration of the estate); and

(b)

a statutory declaration from each trustee confirming that he or she satisfies the eligibility requirements in section 62 and has agreed to be appointed as a trustee; and

(c)

the address and contact details of each trustee.

(3)

The chief executive must enter the name of the whānau trust in the Māori land register if he or she is satisfied that—

(a)

the declaration of the trust satisfies the requirements in section 58; and

(b)

each trustee satisfies the eligibility requirements in section 62.

(4)

If the chief executive is not satisfied of the matters set out in subsection (3), the chief executive must give the trustees an opportunity to provide further particulars in support of the application before making a decision to refuse not to enter the trust in the register.

(5)

The chief executive must enter the name of the whānau trust in the Māori land register, without first needing to be satisfied of the matters in subsection (3), if—

(a)

the chief executive amends the register under Part 7 to vest interests in Māori freehold land in the trustees of the trust; or

(b)

the chief executive receives a court order made under Part 7 vesting interests in Māori freehold land in the trustees of the trust.

65 Recording of beneficiaries’ details on Māori land register

(1)

The beneficiary of a whānau trust, or a trustee of the trust on behalf of the beneficiary, may apply to the chief executive to have the beneficiary’s details recorded in the Māori land register in relation to—

(a)

the entry for the whānau trust; and

(b)

the entry for the parcel of Māori land that the trustees own or in which they hold an individual freehold interest (as trust property).

(2)

The chief executive must record the beneficiary’s details, if the chief executive is satisfied that the person is a beneficiary of the trust.

66 Entitlements of beneficiaries of whānau trusts

(1)

A beneficiary of a whānau trust has the following entitlements in respect of Māori freehold land or an individual freehold interest held by the trustees as trust property:

(a)

to attend and speak at meetings of owners, as if the beneficiary were an owner of the land; and

(b)

to vote as if the beneficiary were a participating owner, if a decision of the owners of the land is required and the vote is one based on a simple majority of participating owners where votes have equal weight; and

(c)

to receive grants made from income of the trust.

(2)

A beneficiary is entitled to receive grants under subsection (1)﻿(c)—

(a)

as if the beneficiary were an owner of the individual interest; and

(b)

without those grants first being paid to the trustees; and

(c)

in addition to any entitlement of the beneficiary to receive grants that are made to the trustees as owners of the individual freehold interest.

67 Whānau trusts not subject to rule against perpetuities

The rule against perpetuities and the provisions of the Perpetuities Act 1964 do not prescribe or restrict the period during which—

(a)

a whānau trust may exist in law; or

(b)

a trustee of a whānau trust may hold or deal with property (including income derived from property).

(a)

(b)

whether a whānau trust has been, or may be, established in accordance with Parts 1 to 9:

(c)

whether a person is, or is eligible to be, a beneficiary of a whānau trust:

(d)

whether a person is, or is eligible to be, a trustee:

(e)

whether any property is, or is capable of being, whānau trust property:

(f)

any question or dispute in relation to the administration of a whānau trust:

(g)

any question or dispute in relation to the appointment, replacement, or removal of trustees.

(2)

The court may, on application by a trustee or a beneficiary, amend the terms of the declaration of a whānau trust. of a whānau trust, do either or both of the following:

(a)

appoint a trustee of a whānau trust:

(b)

amend the declaration of a whānau trust.

(3)

The amendments that may be made by the courtthe court may make to the declaration of a whānau trust include—

(a)

correcting errors or omissions; and

(b)

adding, removing, or varying any conditions or restrictions relating to the disposal of, or other dealings with, the trust property that is an interest in Māori freehold land.

(4)

The court also has and may exercise, in relation to whānau trusts, all the same powers and authorities as the High Court has and may exercise under the Trustee Act 1956 in respect of trusts generally.

(5)

The court—

(a)

must exercise the powers and authorities described in subsection (4) consistently with Parts 1 to 9; and

(b)

must not make a determination, amend the terms of the a declaration of a whānau trust, or exercise powers and authorities under this section unless it is satisfied that it will assist the administration of the trust to do so.

(6)

Subsection (4) does not limit or affect the jurisdiction of the High Court.

69 Court may validate actions of trustees

(1)

The court may, on application, validate an action of the trustees of a whānau trust if there is doubt as to whether the action was lawful or the trust was established in accordance with Parts 1 to 9.

(2)

An application may be made by—

(a)

the chief executive; or

(b)

a trustee; or

(c)

a beneficiary of the trust.

(3)

The court may not validate an action taken in bad faith.

70 Court may enforce obligations of whānau trust

(1)

The court may require a trustee of a whānau trust to—

(a)

file a written report in the court and appear before the court for questioning on the report; or

(b)

appear before the court for questioning on any matter relating to the administration of the trust or the performance of his or her duties as trustee.

(2)

The court may enforce the obligations of a trustee of a whānau trust under either or both of the following:

(a)

the terms of the trust declaration of trust:

(b)

the trustee’s fiduciary duties to the beneficiaries of the trust.

(3)

The court may act under this section at any time—

(a)

on application to the court; or

(b)

on the court’s own motion.

70ACourt may allow withdrawal of beneficial interests from whānau trust in exceptional circumstances

(1)

The court may, on application by a beneficiary of a whānau trust, make an order allowing the withdrawal of any or all of his or her beneficial interests from the trust.

(2)

The court may make the order it is satisfied that—

(a)

exceptional circumstances exist; and

(b)

withdrawal of the beneficial interests will not prevent the trust from fulfilling the purpose for which it was established (as specified in section 58(2)) in respect of the other beneficiaries.

(3)

Before making the order, the court must determine each beneficial interest to be withdrawn.

(4)

When making the order, the court must, after it is satisfied that all outstanding liabilities in respect of a beneficial interest to be withdrawn have been satisfied, vest the beneficial interest in the beneficiary.

Termination of whānau trust

71Termination Application to court for termination of whānau trust by court order

(1)

An application may be made to the court for an order terminating a whānau trust.

(2)

The application may be made by—

(a)

the owner who established the trust (if still living); or

(b)

the trustees, or a majority of the trustees, of the trust; or

(c)

at least 5 beneficiaries of the trust.

(3)

The court may make the order if it is satisfied that—

(a)

the following circumstances apply:

(i)

the trust is not fulfilling the purpose for which it was established (as specified in section 58(2)); and

(ii)

75% or more of the beneficiaries who participate in making a decision as to whether the trust should be terminated agree that it should be terminated; and

(iii)

in the court’s opinion, termination will not unduly prejudice a beneficiary of the trust; or

(a)

the trust is not fulfilling the purpose for which it was established (as specified in section 58(2)) and the court is satisfied that termination will not unduly prejudice a beneficiary of the trust; or

(ab)

continuation of the trust would be detrimental to the interests of the beneficiaries; or

(ac)

the majority of adult beneficiaries agree that it should be terminated and the court is satisfied that termination will not unduly prejudice a beneficiary of the trust; or

(b)

there are no surviving beneficiaries of the trust; or

(c)

the trust no longer holds an interest in Māori freehold land or other trust property; or

(d)

the following circumstances apply:

(i)

the trust no longer holds an interest in Māori freehold land but has other trust property; and

(ii)

25% or more of the beneficiaries who participate in making a decision as to whether the trust should be terminated adult beneficiaries agree that it should be terminated.

(4)

When making the order, the court must, after it is satisfied that all outstanding liabilities have been satisfied, vest the beneficial interests in land and other trust property as follows:

(a)

if the original owner of the beneficial interest is alive,—

(i)

in the original owner; or

(ii)

with the agreement of the original owner, in accordance with paragraph (b), as if the owner were dead:

(b)

if the original owner of the beneficial interest is dead, to the beneficiaries of the trust who are associated with the land for which the beneficial interests are to be vested in accordance with tikanga Māori—

(i)

in equal shares; or

(ii)

as specified in any agreement made between the beneficiaries, but only if the court is satisfied that 75% or more of the beneficiaries who participate in making a decision about the terms of the agreement agree to its terms:

(c)

if both the original owner and all the beneficiaries of the beneficial interest are dead, to the persons who qualify as eligible beneficiaries under section 246 as if the owner had died intestate:

(d)

if there are no surviving beneficiaries associated with the land in accordance with tikanga Māori, to the persons who qualify as eligible beneficiaries under section 246246A(3) as if the owner had died intestate.

71ACourt order for termination of whānau trust

When making an order terminating a whānau trust, the court must, after it is satisfied that all outstanding liabilities have been satisfied, vest—

(a)

the beneficial interests in land in accordance with section 71B; and

(b)

other trust property in accordance with section 71C.

71BVesting of beneficial interests in land after termination of whānau trust

(1)

When making an order terminating a whānau trust, the court must vest beneficial interests in land in the persons who are described in the first of the following paragraphs that applies (and to avoid doubt, if there are also persons who are described in a subsequent paragraph, those persons are not eligible to have the land vested in them):

(a)

if the person who owned the beneficial interest before it was held by the trust (the original owner in this section) is alive,—

(i)

in the original owner; or

(ii)

with the agreement of the original owner, in accordance with paragraph (c), as if the owner were dead:

(b)

if the original owner made a will that gifts the beneficial interest if a whānau trust fails or is terminated, in accordance with that gift (provided that the gift is otherwise in accordance with Parts 1 to 9):

(c)

if the original owner did not make a will that gifts the beneficial interest if a whānau trust fails or is terminated—

(i)

as specified in any agreement made between the beneficiaries of the trust, but only if the court is satisfied about the matters specified in subclause (4); or

(ii)

if an agreement is not made between the beneficiaries or the court is not satisfied about the matters specified in subclause (4), in equal shares among the beneficiaries who are associated with the land to which the beneficial interest relates in accordance with tikanga Māori:

(d)

if all the beneficiaries of the whānau trust who are associated with the land are dead, to the persons who qualify as eligible beneficiaries under section 246 as if the owner had died intestate:

(e)

if there are no surviving eligible beneficiaries, to the persons who qualify under section 246A(3) as if the owner had died intestate.

(2)

Beneficial interests cannot vest under an agreement entered into under subsection (1)﻿(c)﻿(i) unless the court is satisfied that the majority of the adult beneficiaries of the whānau trust agree to its terms and, in doing so,—

(a)

all beneficiaries of the trust have received independent legal advice about the effect of the agreement (but each beneficiary does not need to have received separate legal advice); or

(b)

understand the terms of the agreement and the agreement is fair in the circumstances.

71CVesting of other trust property after termination of whānau trust

(1)

When making an order terminating a whānau trust, the court must vest trust property, other than beneficial interests in land, in the persons who are described in the first of the following paragraphs that applies (and to avoid doubt, if there are also persons who are described in a subsequent paragraph, those persons are not eligible to have the land vested in them):

(a)

if the original owner of particular trust property is alive,—

(i)

in the original owner; or

(ii)

with the agreement of the original owner, in accordance with paragraph (c), as if the owner were dead:

(b)

if the original owner of particular trust property made a will that gifts the property if a whānau trust fails or is terminated, in accordance with that gift (provided that the gift is otherwise in accordance with Parts 1 to 9):

(c)

if the original owner did not make a will that gifts the property if a whānau trust fails or is terminated,—

(i)

as specified in any agreement made between the beneficiaries of the trust, but only if the court is satisfied about the matters specified in subclause (4) that the majority of the adult beneficiaries agree to its terms; or

(ii)

if an agreement is not made between the beneficiaries or the court is not satisfied about the matters in subclause (4), in proportion to the beneficial interests that vest in each beneficiary under subsection (2)﻿(c):

(d)

if all the beneficiaries of the whānau trust are dead, to the persons in whom beneficial interests are vested under subsection (2)﻿(d), in proportion to the beneficial interests that are vested in them:

(e)

if there are no persons entitled to the beneficial interests under subsection (2)﻿(d) to the persons who qualify under section 246A(3), as if the owner had died intestate, in proportion to the beneficial interests that are vested in them.

(2)

Trust property cannot vest under an agreement entered into under subsection (1)﻿(c)﻿(i) unless the court is satisfied that the majority of the adult beneficiaries of the whānau trust agree to its terms and, in doing so,—

(a)

all beneficiaries of the trust have received independent legal advice about the effect of the agreement (but each beneficiary does not need to have received separate legal advice); or

(b)

understand the terms of the agreement and the agreement is fair in the circumstances.

72 Responsibilities of trustees if whānau trust terminated

(1)

Promptly after a whānau trust is terminated, the trustees must deliver to the chief executive all money, books of account, and records held in their capacity as trustees of the terminated trust.

(2)

This section applies whether the trust is terminated under section 49 or 71.

72AResponsibilities of chief executive and Māori Trustee in respect of trust money if whānau trust terminated

(1)

This section applies when money has been transferred to the chief executive by the trustees after termination of a whānau trust.

(2)

The chief executive must transfer any money to which a beneficiary is entitled to the beneficiary.

(3)

However, if a beneficiary cannot be contacted despite reasonable efforts having been made, the money must be transferred to the Māori Trustee.

(4)

The Māori Trustee must—

(a)

credit the money to the Common Fund (within the meaning of the Māori Trustee Act 1953); and

(b)

hold the money on trust for those beneficiaries (or for their successors in title); and

(c)

ensure that any distributable income derived from the money and payable under section 26(2) of the Māori Trustee Act 1953, is added to the money.

(5)

If the Māori Trustee is holding an amount relating to money to which a beneficiary is entitled, the beneficiary is entitled to claim that amount (which may differ from the original money held because of any adjustments made under the Māori Trustee Act 1953).

Subpart 3—Kaiwhakamarumaru for owners needing protection

Appointment of kaiwhakamarumaru for owners needing protection

73 Appointment of kaiwhakamarumaru for owners needing protection

(1)

The court may, on application, make an order appointing a kaiwhakamarumaru to act as manager of any of the following property of a person who is an owner needing protection:

(a)

a beneficial interest in Māori freehold land:

(b)

an interest in private land (other than a beneficial interest in Māori land):

(c)

personal property, but only if the person also owns property described in paragraph (a) or (b), or both.

(2)

However, the court must not make an order in respect of—

(a)

any property of the person that is subject to a property order under the Protection of Personal and Property Rights Act 1988:

(b)

an interest in private land described in subsection (1)﻿(b) unless the person is Māori.

74 Meaning of owner needing protection

(1)

In Parts 1 to 9, an owner needing protection means an individual who—

(a)

is less than 18 years of age; or

(b)

in the opinion of the Māori Land Court or another court, lacks wholly or partly the competence to manage his or her own affairs in relation to his or her interests in Māori freehold land.

(2)

For the purposes of paragraph (b) of subsection (1),—

(a)

an individual is to be presumed, until the contrary is proved, to be competent to manage his or her own affairs in relation to his or her interests in Māori freehold land; and

(b)

the Māori Land Court or other court has jurisdiction under that paragraph whether the individual is domiciled or ordinarily resident in New Zealand or elsewhere.

75 Who may be appointed as kaiwhakamarumaru

(1)

The court may appoint any legal person of the following as a kaiwhakamarumaru.:

(a)

an individual:

(b)

the Māori Trustee, Public Trust, or a trustee company within the meaning of the Trustee Companies Act 1967.

(2)

However, if an individual is appointed, he or she—

(a)

must be eligible to be a kaitiaki of a governance body under section 184(3); and

(b)

must not have been disqualified from being appointed, or from continuing in an appointment, as a kaiwhakamarumaru under section 85(2); and

(c)

must not have been disqualified from being appointed, or continuing in an appointment, as a kaitiaki under section 220.

76 Functions and duties of kaiwhakamarumaru

(1)

A kaiwhakamarumaru has the functions and powers set out in the order appointing the kaiwhakamarumaru.

(2)

A kaiwhakamarumaru may apply to the court for directions relating to the performance or exercise of the functions and powers.

(2A)

A kaiwhakamarumaru must manage the property concerned in accordance with the order and any directions of the court.

(3)

A Subject to subsection (2A), a kaiwhakamarumaru must—

(a)

manage the property concerned in accordance with the order; and

(b)

as far as practicable, promote and protect the best interests of the owner; and

(c)

as far as practicable, seek at all times to encourage the owner to develop and exercise the owner’s competence to manage his or her own affairs in relation to his or her property; and

(d)

as far as practicable, consult the owner, and keep the owner informed, about the property being managed under the order; and

(da)

if a welfare guardian has been appointed for the owner, as far as practicable, consult the welfare guardian on a regular basis to ensure that the interests of the owner are not prejudiced through any breakdown in communication between the kaiwhakamarumaru and the welfare guardian; and

(e)

as far as practicable, consult any other person that, in the opinion of the kaiwhakamarumaru, is interested in the welfare of the owner and competent to advise the kaiwhakamarumaru in relation to the management of the owner’s property.

77 Consequences of appointing kaiwhakamarumaru

(1)

Land and other property (including any income derived from the property) of an owner needing protection does not vest in a kaiwhakamarumaru appointed to manage the property.

(2)

However, the kaiwhakamarumaru is entitled to deal with the property in any manner necessary to carry out the terms of the order appointing the kaiwhakamarumaru comply with section 76 and, for that purpose,—

(a)

the kaiwhakamarumaru must be treated as the owner of the beneficial interest in the land that is subject to the order; and

(b)

every decision or action of the kaiwhakamarumaru has the same effect as if it were made or done by the owner and the owner had full capacity to make the decision or take the action; and

(c)

no person dealing with the kaiwhakamarumaru is required to seek or gain the consent of the owner or any other person in relation to the dealing; and

(d)

no dealing is affected by the owner or any other person not consenting to the dealing.

(3)

While the order remains in force, the owner is not capable of exercising any powers he or she may have in respect of the property to which the order relates, other than by will and then only if the person owner has testamentary capacity.

Procedure for appointing kaiwhakamarumaru

78 Who may apply for order appointing kaiwhakamarumaru

Any of the following people may apply to the court for an order appointing a kaiwhakamarumaru:

(a)

a person who is an owner needing protection:

(b)

immediate family of an owner needing protection:

(c)

the holder of a power of attorney granted by an owner needing protection:

(d)

a person employed by the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989 as a social worker:

(e)

a doctor (being a health practitioner who is registered with the Medical Council of New Zealand as a practitioner of the profession of medicine):

(f)

the Māori Trustee, the Public Trust, or a trustee company within the meaning of the Trustee Companies Act 1967:

(g)

a representative of a group that is providing services and facilities for the welfare of an owner needing protection (other than for commercial gain):

(h)

if the application is made in respect of an owner needing protection who is a patient or a resident in a place that provides hospital care, rest home care, or residential disability care as those terms are defined in section 4(1) of the Health and Disability Services (Safety) Act 2001, the principal manager of that place:

(i)

if a welfare guardian has been appointed for an owner needing protection under the Protection of Personal and Property Rights Act 1988, that welfare guardian:

(j)

any other person, with leave of the court.

79 Court may appoint lawyer to represent person if application for order appointing kaiwhakamarumaru made in relation to person’s property

(1)

The court may appoint a lawyer to represent the person whose property is the subject of an application for an order appointing a kaiwhakamarumaru.

(2)

A lawyer appointed by the court must—

(a)

contact the person and, as far as is practicable,—

(i)

explain the nature and purpose of the application to the court; and

(ii)

ascertain and give effect to the person’s wishes in respect of the application; and

(b)

evaluate solutions for the problem that formed the basis of the application, taking into account the need to find a solution that—

(i)

makes the least restrictive intervention possible in the management of the affairs of the person, having regard to the degree of the person’s lack of competence; and

(ii)

encourages the person to develop and exercise his or her competence in managing his or her own affairs in relation to his or her property to the greatest extent possible.

(3)

A lawyer appointed under this section may, in any proceedings relating to the application, call any person as a witness and cross-examine witnesses called by any party, including the court.

(4)

A lawyer appointed under this section is entitled to be paid a fee and reimbursed for expenses incurred for providing his or her services from the Māori Land Court Special Aid Fund established under section 446.

80 Matters to which court must have regard when deciding whether to appoint kaiwhakamarumaru

(1)

In deciding whether to make an order appointing a kaiwhakamarumaru in relation to an owner needing protection who is not a minor, the court must have regard to the extent to which—

(a)

appointing a kaiwhakamarumaru would best protect and promote the interests of the person; and

(b)

the extent to which the person is subject, or is likely to be subject, to undue influence in managing his or her property.; and

(c)

whether appointing a kaiwhakamarumaru would best protect and promote the interests of the person.

(2)

The fact that the manner in which the person is managing or intending to manage his or her property is not how a person of ordinary prudence would manage the property given the same circumstances is not in itself sufficient reason to appoint a kaiwhakamarumaru in relation to the person’s property.

81 Content of order appointing kaiwhakamarumaru

(1)

The order appointing a kaiwhakamarumaru must—

(a)

name the person who is the owner needing protection; and

(b)

state the person’s birth date, if he or she is a minor; and

(c)

name the kaiwhakamarumaru appointed (whether or not the appointee is a person proposed in the application); and

(d)

state the contact details of the kaiwhakamarumaru; and

(e)

state the date on which the appointment takes effect; and

(f)

state the date on which the appointment ceases (taking into account section 86); and

(g)

specify the property that the kaiwhakamarumaru is to manage (by reference to the Māori land register for any Māori land); and

(h)

specify any conditions or restrictions on the powers of the kaiwhakamarumaru to manage the property; and

(i)

specify any other matters that the court thinks are necessary for the appointment to operate effectively.

(2)

When specifying matters under subsection (1)﻿(h) or (i), the primary objective of the court must be to make the least restrictive intervention possible in the management of the affairs of the person in respect of whom the application is made in relation to his or her property, having regard to the degree of the person’s lack of competence.

Operational matters in respect of kaiwhakamarumaru appointment

82 Protection of kaiwhakamarumaru from liability

(1)

No action lies against a kaiwhakamarumaru in respect of anything done or omitted to be done by the kaiwhakamarumaru in the exercise of the powers conferred on the kaiwhakamarumaru by the order or under Parts 1 to 9, unless it is shown that the kaiwhakamarumaru acted in bad faith or without reasonable care.

(2)

A kaiwhakamarumaru is protected from civil liability, however it may arise, for any act that the kaiwhakamarumaru does or omits to do in fulfilment or intended fulfilment of the purpose for which the kaiwhakamarumaru is appointed, unless—

(a)

the terms of the order appointing the kaiwhakamarumaru provide otherwise; or

(b)

the act or omission is done in bad faith or without reasonable care.

(1)

A person appointed as a kaiwhakamarumaru is protected from civil liability, however it may arise, for any act that the person does or omits to do in performing or exercising the functions and powers of his or her appointment.

(2)

However, subsection (1) does not apply in respect of an act or omission if—

(a)

the order appointing the person states that the person is not protected from civil liability for the act or omission; or

(b)

if the act or omission is done in bad faith or without reasonable care.

(3)

Despitesubsection (2)subsections (1) and (2), a kaiwhakamarumaru is personally liable for any contract or arrangement entered into with, or liability incurred to, any person if the kaiwhakamarumaru does not, before entering into the contract or arrangement or incurring the liability, disclose to that person that the kaiwhakamarumaru is acting in that capacity.

83 Expenses incurred by kaiwhakamarumaru and remuneration

(1)

The reasonable expenses properly incurred by a kaiwhakamarumaru in performing or exercising the functions and powers of the office appointment are charged against and payable from the property that the kaiwhakamarumaru is appointed to manage.

(2)

However, any amount payable must not be charged against any an interest in Māori freehold land, although the income from the land may be used to satisfy the debt.

(3)

A kaiwhakamarumaru is not otherwise entitled to be remunerated unless the court directs that he or she should be remunerated either—

(a)

in the order appointing the kaiwhakamarumaru; or

(b)

in a subsequent order or direction.

84 Application of other enactments to kaiwhakamarumaru appointment

(1)

If Public Trust is appointed as a kaiwhakamarumaru, the Public Trust Act 2001 applies,—

(a)

so far as applicable, and with any necessary modifications, to the management of the property to which the order appointing the kaiwhakamarumaru relates; but

(b)

subject to the order and Parts 1 to 9.

(2)

If the Māori Trustee is appointed as a kaiwhakamarumaru, the Māori Trustee Act 1953 applies,—

(a)

so far as applicable, and with any necessary modifications, to the management of the property to which the order appointing the kaiwhakamarumaru relates; but

(b)

subject to the order and Parts 1 to 9.

(3)

If a trustee company is appointed as a kaiwhakamarumaru, the Trustee Companies Act 1967 applies,—

(a)

so far as applicable, and with any necessary modifications, to the management of the property to which the order appointing the kaiwhakamarumaru relates; but

(b)

subject to the order and Parts 1 to 9.

Changes to kaiwhakamarumaru appointment and termination of appointment

85 Circumstances in which court may appoint, replace, remove, or disqualify kaiwhakamarumaru

(1)

The court may amend an order appointing a kaiwhakamarumaru or revoke and replace an order for the purpose of—

(a)

appointing 1 or more additional kaiwhakamarumaru, if the court is satisfied it is in the interests of the owner needing protection concerned to do so:

(b)

replacing a kaiwhakamarumaru, if the court is satisfied a vacancy exists.

(2)

The court may make an order disqualifying a person from being appointed as a kaiwhakamarumaru or terminating a kaiwhakamarumaru appointment if the court is satisfied that—

(a)

the person was appointed, or continued in an appointment, as a kaiwhakamarumaru while not eligible under section 75 to hold that position or, while appointed as a kaiwhakamarumaru, the person ceased to be eligible under that section to hold that position; or

(b)

the person has, in relation to an appointment and whether convicted or not,—

(i)

persistently failed to comply with a duty arising under any enactment, rule of law, rules of court, or court order (to the extent that the duty relates to the role of the kaiwhakamarumaru under Parts 1 to 9); or

(ii)

been guilty of fraud in relation to property he or she is managing in respect of the appointment or in of a breach of a duty owed to the owner of the property; or

(iii)

acted in a reckless or incompetent manner in the performance of the person’s duties under the appointment .;or

(c)

the person has been prohibited or disqualified from an appointment described in subsection (4)﻿(c) to (e).

(3)

The court may make an order—

(a)

on the application of a person described in section 78; or

(b)

on the court’s own motion.

(4)

In subclause (2)﻿(b), appointment means—

(a)

the kaiwhakamarumaru appointment before the court; or

(b)

any other kaiwhakamarumaru appointment; or

(c)

an appointment as a property manager or welfare guardian under the Protection of Personal and Property Rights Act 1988; or

(d)

an appointment as an attorney under an enduring power of attorney; or

(e)

an appointment as a trustee of a trust.

86 Termination of kaiwhakamarumaru appointment

(1)

A person ceases to hold office as a kaiwhakamarumaru on the date specified in the order of appointment, unless the rest of this section provides otherwise.

(2)

A kaiwhakamarumaru appointment terminates—

(a)

if the owner dies; or

(b)

if the kaiwhakamarumaru is appointed to manage the property of a person under 18 years of age, and the person turns 18 years of age (unless the appointment was made on the grounds that the person lacked competence to manage his or her affairs, in which case it does not terminate); or

(c)

if—

(i)

the kaiwhakamarumaru dies; or

(ii)

the kaiwhakamarumaru is adjudged bankrupt; or

(iii)

the kaiwhakamarumaru becomes subject to a compulsory treatment order made under Part 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(iv)

the property, or any part of the property, of the kaiwhakamarumaru is the subject of a personal order or a property order made under the Protection of Personal and Property Rights Act 1988; or

(v)

the property, or any part of the property, of the kaiwhakamarumaru is the subject of an order made under section 73 (appointment of kaiwhakamarumaru for owners needing protection); or

(vi)

the kaiwhakamarumaru becomes otherwise incapable of acting; or

(d)

by court order under section 85 or 92.

(3)

Promptly after a person’s appointment as a kaiwhakamarumaru is terminated, the person must deliver to the chief executive all money, books of account, and records held by the person in the person’s capacity as a kaiwhakamarumaru.

Reporting requirements and review of kaiwhakamarumaru appointments

87 Kaiwhakamarumaru must report to Registrar

A kaiwhakamarumaru must report to the Registrar, in accordance with sections 88 to 90, on the performance and exercise of the functions and powers of the kaiwhakamarumaru.

88 Frequency of reporting by kaiwhakamarumaru

(1)

A kaiwhakamarumaru must provide the Registrar with a report—

(a)

for the 12-month period starting on the day on which the appointment takes effect; and

(b)

for each subsequent 12-month period that the term of appointment continues (or portion of the period if the appointment terminates before the 12-month anniversary date).

(2)

Each report must be filed within 90 days after the last day of the reporting period.

(3)

However, a kaiwhakamarumaru must file reports at more frequent intervals if required to do so by the order appointing the kaiwhakamarumaru or any other court order.

89 Contents of kaiwhakamarumaru report

A report made by a kaiwhakamarumaru must contain the following information for the reporting period to which the report relates:

(a)

details of transactions affecting the land or other property managed by the kaiwhakamarumaru:

(b)

details of income derived from the land or other property:

(c)

details of payments to or on behalf of the owner:

(d)

details of payments to or on behalf of the spouse, civil union partner, de facto partner, or child of the owner:

(e)

details of disbursements made:

(f)

details of expenses incurred by the kaiwhakamarumaru that are charged against and payable from the property that the kaiwhakamarumaru is appointed to manage:

(g)

details of remuneration received by the kaiwhakamarumaru.

90 Actions resulting from report by kaiwhakamarumaru

(1)

If the Registrar considers that a report by a kaiwhakamarumaru deserves inquiry, the Registrar must refer it to the court and the court may initiate a review under section 92.

(2)

If a kaiwhakamarumaru fails to provide a report (whether by the due date or at all), the Registrar must inform the court and the court may do either or both of the following:

(a)

make an order directing the kaiwhakamarumaru to remedy the default within the time specified in the order:

(b)

initiate a review under section 92.

91 Inspection of kaiwhakamarumaru reports

(1)

Any person may, by leave of the Registrar or the court, inspect or make a copy of the whole or part of a report provided under section 87.

(2)

The Registrar or court may grant leave subject to the removal or concealment of part of the report.

92 Review by court of appointment of kaiwhakamarumaru

(1)

The court must periodically review each order appointing a kaiwhakamarumaru to satisfy itself that the appointment is still necessary and, if so, whether any changes to the order should be made.

(2)

The court may also, at any other time, review an order appointing a kaiwhakamarumaru if—

(a)

the kaiwhakamarumaru requests the court to do so because—

(i)

a change in circumstances means that the order is no longer necessary or needs to be varied; or

(ii)

the kaiwhakamarumaru requires directions from the court in relation to the appointment; or

(b)

a report of the kaiwhakamarumaru has been referred to the court by the Registrar; or

(c)

the kaiwhakamarumaru has failed to provide a report to the Registrar and the court has decided to initiate a review.

(3)

For the purposes of subsection (1), a kaiwhakamarumaru must apply to the court for a review of the kaiwhakamarumaru appointment at 5-yearly intervals or at shorter intervals if specified by the court—

(a)

in the order of appointment; or

(b)

at any later time.

(4)

When conducting a review, the court may require a kaiwhakamarumaru to—

(a)

provide explanations to the court; and

(b)

produce relevant documents, including accounts.

(5)

Having conducted a review, the court may make an order—

(a)

issuing directions to the kaiwhakamarumaru; or

(b)

varying the terms of the original appointment order in any manner it thinks fit; or

(c)

terminating the appointment.

Registration of order appointing kaiwhakamarumaru

93 Recording of order appointing kaiwhakamarumaru

(1)

The Chief Registrar of the Māori Land Court must send the chief executive a sealed copy of each order of the court appointing a kaiwhakamarumaru, as required by section 269.

(2)

Promptly after receiving a copy of an order, the chief executive must add a notation to the relevant entries in the Māori land register stating that an order has been made appointing a kaiwhakamarumaru and the name and contact details of the kaiwhakamarumaru appointed.

94 Orders appointing kaiwhakamarumaru may be registered

(1)

An order appointing a kaiwhakamarumaru may be registered under the Deeds Registration Act 1908 as an instrument affecting the title to any land in which the person to whom the order relates has any estate or interest, whether legal or equitable.

(2)

An order appointing a kaiwhakamarumaru is an instrument purporting to affect land under the Land Transfer Act 1952, and a memorial of the instrument may be entered on the computer register of land in respect of which the person to whom the order relates is the registered proprietor of any estate or interest.

95 Changes to be made to registers after kaiwhakamarumaru appointment terminated

(1)

If a kaiwhakamarumaru appointment has terminated, the chief executive must add a notation to that effect to the relevant entries in the Māori land register.

(2)

The notation must be added promptly after the chief executive is satisfied that the appointment has terminated.

(3)

The chief executive must also promptly notify the Registrar-General of the termination if the order is registered as an instrument or if a memorial of the instrument has been entered in respect of it under section 94.

Part 4 Dispositions of Māori freehold land and other land

96 Meaning of preferred recipient and preferred entity

(1)

In Parts 1 to 9, preferred recipient, in relation to Māori freehold land,—

(a)

means any 1 or more of the following persons who are associated with the land in accordance with tikanga Māori:

(i)

children, grandchildren, and other descendants of an owner of the land:

(ii)

grandparents, parents, uncles, aunts, siblings, nieces, nephews, and first cousins of an owner of the land:

(iii)

any owners of the land:

(iv)

former owners of the land:

(v)

any former owners of the land, and descendants of any former owners of the land, including the land when it formed any part of a former parcel; and

(b)

includes the trustees of a whānau trust or other trust (other than a governance body) that holds the land for a person to whom paragraph (a) applies, but only in his or her capacity as trustee; and.

(c)

includes any 1 or more of the children, grandchildren, and other descendants of an owner of the land whose interest is derived by succession from the following person:

(i)

for SILNA land, an original beneficiary of the land (as those terms are defined by section 446 of the Ngāi Tahu Claims Settlement Act 1998):

(ii)

for land that formed part of the land described as “Pouakani (Wairarapa Maoris) Block” in a proclamation dated 14 April 1916, a person in whom the land was vested by the proclamation:

(iii)

for land subject to a scheme of consolidation made under section 6 of the Native Land Amendment and Native Land Claims Adjustment Act 1923, section 161 of the Maori Land Act 1931, or Part 18 of the Maori Affairs Act 1953, a person who became an owner of the land under the scheme of consolidation.

(2)

In this Part, preferred entity, in relation to Māori freehold land (the land for disposition), means—

(a)

a governance body, other than an existing statutory body or a representative entity, that manages under a governance agreement other Māori freehold land that has 1 or more owners who are preferred recipients of the land for disposition:

(b)

a representative entity for the land for disposition.

(3)

SeePart 9 for how a dispute about whether a person is a preferred recipient, or whether an entity is a preferred entity, may be referred to dispute resolution.

97 Disposition of land made by owner or governance body

(1)

A disposition of all or part of a parcel of Māori freehold land may be made only by—

(a)

the owners of the land, unless a governance body is appointed to manage the land; or

(b)

the governance body.

(2)

A disposition of an individual freehold interest in Māori freehold land (separately from the other individual freehold interests in the land) may be made only by the owner of the interest.

(3)

However, this section does not prevent—

(a)

a kaiwhakahaere from disposing of land on behalf of the owners if permitted under his or her appointment:; or

(b)

the administrator or executor of a deceased person’s estate from disposing of land or an individual freehold interest in accordance with the person’s will:; or

(c)

a mortgagee from selling land under a power expressed or implied in a mortgage.

(4)

Seesection 189 for how to appoint a kaiwhakahaere to carry out the decision of the owners of land that is not managed under a governance agreement.

98 Overview of governance body’s agreement to disposition

(1)

This section is an overview of what a governance body must do to agree to a disposition of Māori freehold land (under a provision of this Part that requires the governance body’s agreement).

(2)

The governance body must agree to the disposition in accordance with the governance agreement.

(3)

A governance agreement, depending on the type of disposition,—

(a)

generally requires the governance body to obtain the agreement of a certain majority of the owners of the land (seePart 3 of Schedule 4):

(b)

may apply the default decision-making process in Schedule 2, which—

(i)

first requires a notice of proposal about the disposition; and

(ii)

may impose additional requirements for certain dispositions (for example, a notice of proposal to sell the land must include an independent valuation and the minimum sale price and other terms of sale); and

(iii)

provides for a meeting of owners to vote on the proposal.

Sale, gift, exchange, etc, of parcel of Māori freehold land

99 Sale of parcel

(1)

A parcel of Māori freehold land may be sold, but only in accordance with—

(a)

section 100; or

(b)

section 103 (where a governance body has no reasonable prospect of obtaining the required level of owner agreement); or

(c)

a power expressed or implied in a mortgage; or

(d)

a right to buy the land in a lease executed before 8 November 1974 (being the date of commencement of Part 7 of the Maori Affairs Amendment Act 1974).

(2)

However, a parcel cannot be sold—

(a)

if it is owned by a class of collective owners; or

(b)

if it is owned by the trustees of a whānau trust or other trust (other than a governance body); or

(c)

under a power given by will unless the will-maker is the sole owner of the parcel.

(3)

To avoid doubt, a parcel of Māori freehold land (or the part of Māori freehold land comprising the buildings and other fixtures attached to the land, and everything growing on the land) does not change status merely because it is sold, including under a power in a mortgage.

100 Sale of parcel in ordinary cases

(1)

This section specifies the only way in which a parcel of Māori freehold land may ordinarily be sold (without obtaining an order under section 103 or relying on a mortgagee’s power of sale or a right to buy in certain historical leases).

(2)

The sale must be—

(a)

to a preferred recipient in relation to the land, under an agreement negotiated with the recipient; or

(b)

to a preferred recipient or preferred entity in relation to the land, under an agreement formed on acceptance of a qualifying tender under a preferential tender process for the land run in accordance with section 101; or

(c)

to any other person, under an agreement—

(i)

that is made by tender or auction after a preferential tender process for the land ends without a qualifying tender; and

(ii)

that is on terms at least as favourable to the seller as the terms required for a qualifying tender under that preferential tender process.

(3)

If the land is managed under a governance agreement,—

(a)

the decision to offer the land for sale must be agreed to by the governance body, but only after the body complies with section 104; and

(b)

the governance body must negotiate the terms of the sale or, for a preferential tender process, set a minimum sale price and all other terms of the sale.

(3A)

For a governance body’s decision to offer land for sale, seeclause 13 of Schedule 4, which requires the agreement of owners who together hold a 75% or more share in the land (unless the governance agreement requires a greater level of agreement).

(4)

If the land is not managed under a governance agreement,—

(a)

the decision to offer the land for sale must be agreed to by owners who together hold a 75% or more share in the land; and

(b)

the owners’ decision may set a minimum sale price or any other terms of the sale; and

(c)

the following must negotiate all other terms of the sale or, for a preferential tender process, set all other terms of the sale (including a minimum sale price if not set by the owners’ decision):

(i)

a kaiwhakahaere appointed to negotiate or set the terms; or

(ii)

1 or more of the owners, if all of the owners agree in writing to their negotiating or setting the terms.

(5)

The sale must—

(a)

be conditional on the court making an order of confirmation that it complies with the requirements of Parts 1 to 9; and

(b)

otherwise be agreed to unconditionally within 9 months after the decision is made to offer the land for sale.

(6)

To avoid doubt, if a decision is made to offer land for sale and a preferential tender process ends without a qualifying tender, the land may be sold to any other person under subsection (2)﻿(c) within the 9-month period referred to in subsection (5)﻿(b) without requiring a new decision to offer the land for sale.

101 Preferential tender process for sale of parcel

(1)

A preferential tender process referred to in section 100 must satisfy subsections (2) to (6).

(2)

The seller must give a written notice that—

(a)

describes the land for sale and its boundaries; and

(b)

requests tenders to buy the land only from the preferred recipients and preferred entities in relation to the land.

(3)

The notice must be—

(a)

sent to every preferred recipient whose address for notices is known to the seller; and

(b)

published electronically and (if necessary) in any other way so that preferred recipients are reasonably likely to learn of the request for tenders.

(4)

The notice must specify a deadline for receiving tenders that is at least 20 working days after the end of the day on which the notice is last published in print.

(5)

The notice must specify the following as the terms of sale:

(a)

all the terms of sale set in accordance with section 100, but the notice need not disclose the minimum sale price set for the land; and

(b)

that the agreement for sale is conditional only on the court making an order of confirmation that the sale complies with the requirements of Parts 1 to 9; and

(c)

that a tender cannot be withdrawn within 5 working days after the deadline for receiving tenders.

(6)

However, any of the terms of sale may instead be specified in a document located at a place or on an Internet site described in the notice.

(7)

A qualifying tender is received if—

(a)

the seller receives by the deadline a written tender from a preferred recipient to buy the land—

(i)

for at least the minimum sale price set for the land; and

(ii)

otherwise on the specified terms of sale or on terms more favourable to the seller; or

(b)

the seller does not receive a qualifying tender from a preferred recipient in accordance with paragraph (a) but instead receives by the deadline a written tender from a preferred entity to buy the land on the terms required by paragraph (a)﻿(i) and (ii).

102 Exchange of parcel

(1)

A parcel of Māori freehold land may be exchanged for something else, but only in accordance with—

(a)

this section; or

(b)

section 103 (where there is no reasonable prospect of obtaining the required level of owner agreement).

(2)

However, a parcel cannot be exchanged if it is owned by—

(a)

a class of collective owners; or

(b)

the trustees of a whānau trust or other trust (other than a governance body).

(3)

The land to be exchanged (land A) must be—

(a)

a parcel of Māori freehold land; or

(b)

2 or more parcels of Māori freehold land with the same beneficial ownership and the same status as land subject to, or not subject to, Part 2 of the Maori Affairs Restructuring Act 1989.

(4)

Land A must be exchanged for a parcel of either of the following types of land, or 2 or more parcels of the same type and with the same beneficial ownership and the same status as land subject to, or not subject to, Part 2 of the Maori Affairs Restructuring Act 1989 (land B):

(a)

private land other than Māori customary land; or

(b)

Crown land that is subject to Part 2 of the Maori Affairs Restructuring Act 1989.

(5)

If a parcel of land A, or a parcel of land B that is Māori freehold land, is managed under a governance agreement, the exchange must be agreed to by the governance body that manages the parcel, but only after the body complies with section 104.

(5A)

For a governance body’s decision to exchange land, seeclause 13 of Schedule 4, which requires the agreement of owners who together hold more than a 50% share in the land (unless the governance agreement requires a greater level of agreement).

(6)

If a parcel of land A, or a parcel of land B that is Māori freehold land, is not managed under a governance agreement, the exchange must be agreed to by owners who together hold more than a 50% share in the parcel.

(7)

If a parcel of land B is not Māori freehold land, the exchange must be agreed to as follows:

(a)

for private land, by the owners of the parcel:

(b)

for Crown land, by the Minister responsible for the parcel or the registered proprietor of the parcel.

(8)

The beneficial ownership of land must be exchanged intact. That is, the beneficial ownership of land on each side of the exchange must, after the exchange, match the beneficial ownership, before the exchange, of the land on the other side.

(9)

The exchange must be conditional on the court making an order of confirmation that the exchange complies with the requirements of Parts 1 to 9.

(10)

If land is exchanged under this section, the land on each side of the exchange becomes land of the status that was held by the land on the other side of the exchange, whether that status is as land of 1 or both of the following types:

(a)

Māori freehold land:

(b)

land subject to Part 2 of the Maori Affairs Restructuring Act 1989.

103 Order declaring that land ceases to be Māori freehold land on sale or exchange by governance body

(1)

This section applies if a governance body—

(a)

wants to sell or exchange a parcel of Māori freehold land; and

(b)

is satisfied that there is no reasonable prospect of obtaining the required level of owner agreement.

(2)

The governance body may apply to the court for an order declaring that the parcel of land will cease to be Māori freehold land on the change of ownership from the sale or exchange (as the case may be).

(3)

The court must not make an order under this section unless it is satisfied that—

(a)

the governance body has complied with section 104 in relation to the sale or exchange; and

(b)

the purpose of Parts 1 to 9 can be achieved more effectively if the order is made.; and

(c)

the sale or exchange is not prohibited by the governance agreement.

(4)

The order must specify the parcel comprising the land.

(5)

If an order is made, the governance body may sell or exchange the parcel of land without complying with section 100 or 102 (as the case may be).

104 Other requirements before governance body offers to sell parcel or exchanges parcel

(1)

This section imposes requirements on a governance body that manages a parcel of Māori freehold land before the governance body—

(a)

agrees to offer to sell the parcel under section 100; or

(b)

agrees to exchange the parcel under section 102; or

(c)

offers to sell the parcel, or exchanges the parcel, under section 103.

(2)

The governance body must have a land management plan that complies with section 210 and that—

(a)

authorises the particular offer to sell the parcel under section 100; or

(b)

authorises the particular exchange of the parcel under section 102; or

(c)

is not inconsistent with the offer to sell the parcel, or the exchange of the parcel, under section 103.

(3)

The governance body must have—

(a)

identified the replacement land, meaning—

(i)

the new land that it will acquire, or acquire and improve, with the net proceeds from the sale or as a result of the exchange; or

(ii)

for a sale, the existing land that it will improve with the net proceeds from the sale (seesection 207); and

(b)

prepared an allocation scheme for the interests in the replacement land (seesection 209); and

(c)

obtained a court order under section 211 changing the status of the replacement land to Māori freehold land (if necessary) and confirming the allocation scheme.

105 Gift of parcel

(1)

A parcel of Māori freehold land may be gifted, but only in accordance with this section.

(2)

A parcel cannot be gifted if—

(a)

if it is owned by a class of collective owners; or

(b)

if it is owned by the trustees of a whānau trust or other trust (other than a governance body); or

(c)

if it is managed under a governance agreement.; or

(d)

by will unless the person making the gift is the sole owner of the parcel.

(3)

The gift must be agreed to by owners who together hold a 75% or more share in the land.

(4)

The recipient of the gift must be a preferred recipient or preferred entity in relation to the land.

(5)

The gift must be conditional on the court making an order of confirmation that the gift complies with the requirements of Parts 1 to 9, unless the gift is by will.

106 Transfer of parcel for settlement on trustees

(1)

A governance body that manages a parcel of Māori freehold land must not settle the land on the trustees of a trust (by transfer to the trustees).

(2)

This section does not prevent a governance body from appointing a custodian trustee.

107 Agreement to certain dispositions of parcels under enactments

(1)

This section applies to a disposition in relation to all or part of a parcel of Māori freehold land that—

(a)

may be made or agreed to under an enactment other than Parts 1 to 9, but is not required by that enactment to be made or agreed to; and

(b)

is not restricted by another provision in this Part.

(2)

The disposition may be made or agreed to, but only in accordance with this section.

(3)

The disposition must be agreed to—

(a)

by the governance body, if the land is managed under a governance agreement; or

(b)

by owners who together hold a 75% or more share in the land, in any other case.

(3A)

For a governance body’s decision about the disposition, seeclause 13 of Schedule 4, which requires the agreement of owners who together hold a 75% or more share in the land (unless the governance agreement requires a greater level of agreement).

(4)

The disposition must be conditional on the court making an order of confirmation that it complies with the requirements of Parts 1 to 9.

108 No sale, gift, exchange, or transfer of part of parcel

(1)

Part of a parcel of Māori freehold land must not be sold, gifted, exchanged, or transferred separately from the rest of the parcel.

(2)

This section does not prevent a boundary adjustment under section 109 or a partition under section 113 or 115.

Boundary adjustment of parcel of Māori freehold land

109 Boundary adjustment of parcel

(1)

A boundary adjustment may be made to a parcel of Māori freehold land, but only if—

(a)

the boundary adjustment is made with an adjoining parcel of land that is not Māori customary land; and

(b)

the actions required by section 110 are completed.

(2)

To avoid doubt, this section does not affect the application of the common law rules of accretion or erosion to any movable boundary of a parcel of Māori freehold land.

110 Actions required for boundary adjustment

(1)

This section sets out the actions that must be completed for a boundary adjustment to a parcel of Māori freehold land.

(2)

A survey plan must be prepared that defines the new parcels—

(a)

in compliance with the applicable survey standards; and

(b)

so that no new parcel becomes landlocked land (as defined by section 319).

(3)

An allocation scheme must be prepared that allocates the beneficial ownership of each new parcel so that it matches the beneficial ownership, before the boundary adjustment, of the existing parcel from which the new parcel primarily derives.

(4)

The boundary adjustment, including the survey plan and allocation scheme, must be agreed to as follows:

(a)

in respect of the parcel of Māori freehold land,—

(i)

if the parcel is managed under a governance agreement, by the governance body; or

(ii)

if the parcel is not managed under a governance agreement, and the adjustment changes the area of the parcel by 2% or more, by owners who together hold more than a 50% share in the parcel; or

(iii)

if the parcel is not managed under a governance agreement, and the adjustment changes the area of the parcel by less than 2%, by owners who together hold 75% or more of the participating owners’ total share in the parcel; and

(b)

in respect of the adjoining parcel of land,—

(i)

for Māori freehold land, in accordance with paragraph (a):

(ii)

for other private land, by the owners of the land:

(iii)

for Crown land, by the Minister responsible for the land or the registered proprietor of the land.

(4A)

For a governance body’s decision about the boundary adjustment, seeclause 13 of Schedule 4, which provides that a boundary adjustment that changes the area of a parcel by 2% or more requires the agreement of owners who together hold more than a 50% share in the land (unless the governance agreement requires a greater level of agreement).

(5)

The boundary adjustment, including the survey plan and allocation scheme, must also be agreed to by—

(a)

the grantor of each easement or other interest that benefits an existing parcel; and

(b)

the grantee of each lease, licence, mortgage, easement, or other interest that burdens an existing parcel.

(6)

The boundary adjustment must be conditional on the court making an order of confirmation that the boundary adjustment, including the survey plan and allocation scheme, complies with the requirements of Parts 1 to 9.

(7)

If the boundary adjustment includes land that is not Māori land, that land must be treated as Māori land for the purposes of section 11(2) of the Resource Management Act 1991 (so that section 11(1) of that Act does not apply).

(8)

If any lease, licence, mortgage, easement, or other interest that affects an existing parcel is to be varied because of the boundary adjustment (for example, to change the area to which it applies or to apportion rights or interests under it), the variation must be made conditional on an order of confirmation being made for the boundary adjustment.

111 Effect of boundary adjustment

(1)

This section applies if a boundary adjustment is made to a parcel of Māori freehold land.

(2)

The land is held as the new parcels defined by the survey plan for the boundary adjustment.

(3)

The beneficial ownership of the new parcels is vested in accordance with the allocation scheme for the boundary adjustment.

(4)

If an existing parcel is managed under a governance agreement immediately before the boundary adjustment,—

(a)

the new parcel that primarily derives from the existing parcel is instead managed under the governance agreement; and

(b)

the governance body must comply with section 208.

(5)

Each new parcel becomes land of the status that was held by the parcel from which it primarily derives, whether that status relates to 1 or both of the following:

(a)

Māori freehold land:

(b)

land subject to Part 2 of the Maori Affairs Restructuring Act 1989.

(6)

If, immediately before an existing parcel has its boundary adjusted, any lease, licence, mortgage, easement, or other interest affects—

(a)

all or part of the parcel, the interest continues to apply to the same land in the new parcels; or

(b)

only 1 or more owners’ individual freehold interests in the parcel, the interest then applies to those owners’ individual freehold interests in the new parcels.

(7)

However, subsection (6) does not prevent the variation of an interest immediately upon the boundary being adjusted.

Partition of parcel of Māori freehold land

112 Partition of parcel

(1)

An existing parcel of Māori freehold land may be partitioned into 2 or more new parcels, but only if—

(a)

the actions required by section 113 are completed; or

(b)

for a mortgagee entitled to sell the existing parcel under a mortgage or other charge, the actions required by section 115 are completed.

(2)

A parcel of Māori freehold land cannot be partitioned or subdivided in any other way, but its boundary may be adjusted under section 109.

113 Actions required for partition (other than by mortgagee)

(1)

This section sets out the actions that must be completed in order to partition an existing parcel (other than by a mortgagee).

(2)

A survey plan must be prepared that defines the new parcels—

(a)

in compliance with the applicable survey standards; and

(b)

so that no new parcel becomes landlocked land (as defined by section 319).

(3)

An allocation scheme must be prepared that allocates the beneficial ownership of the new parcels in accordance with section 114.

(4)

The partition, including the survey plan and allocation scheme, must be agreed to as follows:

(a)

for land managed under a governance agreement, by the governance body:

(b)

for other land, by owners who together hold more than a 50% share in the parcel.

(4A)

For a governance body’s decision to partition land, seeclause 13 of Schedule 4, which requires the agreement of owners who together hold more than a 50% share in the land (unless the governance agreement requires a greater level of agreement).

(5)

The partition, including the survey plan and allocation scheme, must also be agreed to by—

(a)

the grantor of each easement or other interest that benefits the existing parcel; and

(b)

the grantee of each lease, licence, mortgage, easement, or other interest that burdens the existing parcel.

(6)

If the existing parcel is managed under a governance agreement, the governance body must have a land management plan that complies with section 210 and that authorises the particular partition.

(7)

The partition must be conditional on the court making an order of confirmation that—

(a)

the partition, including the survey plan and allocation scheme, complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the partition will assist the owners to retain, control, occupy, or develop their land for the benefit of present and future owners; and

(c)

the court is satisfied that the allocation scheme is fair and equitable to all owners.

(8)

If any lease, licence, mortgage, easement, or other interest that affects the existing parcel is to be varied because of the partition (for example, to change the area to which it applies or to apportion rights or interests under it), the variation must be made conditional on an order of confirmation being made for the partition.

114 Allocation scheme for new parcels on partition (other than by mortgagee)

(1)

This section sets out the requirements for an allocation scheme for a partition (other than by a mortgagee).

(2)

If the existing parcel is owned by a class of collective owners, the allocation scheme must provide for the new parcels to be owned by that class of collective owners.

(3)

Otherwise, the allocation scheme must provide for each new parcel to be owned in 1 of the following ways:

(a)

by a sole owner:

(b)

by joint tenants:

(c)

by tenants in common.

(4)

The allocation scheme must allocate ownership of the new parcels so that, as nearly as practicable, the value of owners’ interests in the land overall does not change on partition.

(5)

However, 1 or more owners of land not held by a class of collective owners may agree to allocate their interests on a different basis, as long as it does not affect the allocation of the other owners’ interests.

115 Actions required for partition by mortgagee

(1)

This section sets out the actions that must be completed for a mortgagee to partition an existing parcel.

(2)

A survey plan must be prepared that defines the new parcels—

(a)

in compliance with the applicable survey standards; and

(b)

so that no new parcel becomes landlocked land (as defined by section 319).

(3)

An allocation scheme must be prepared that allocates the beneficial ownership of each new parcel so that it matches the beneficial ownership, before the partition, of the existing parcel.

(4)

The partition, including the survey plan and allocation scheme, must be agreed to by—

(a)

the grantor of each easement or other interest that benefits the existing parcel; and

(b)

the grantee of each lease, licence, mortgage, easement, or other interest that burdens the existing parcel.

(5)

The partition must be conditional on the court making an order of confirmation that—

(a)

the partition, including the survey plan and allocation scheme, complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the partition will assist the owners to retain the most land that is consistent with the circumstances leading to the mortgagee’s entitlement to sell the existing parcel.

(6)

If any lease, licence, mortgage, easement, or other interest that affects the existing parcel is to be varied because of the partition (for example, to change the area to which it applies or to apportion rights or interests under it), the variation must be made conditional on an order of confirmation being made for the partition.

116 Effect of partition

(1)

This section applies if land is partitioned.

(2)

The partitioned land is held as the separate new parcels defined by the survey plan for the partition.

(3)

The beneficial ownership of the new parcels is vested in accordance with the allocation scheme for the partition.

(4)

If the existing parcel is managed under a governance agreement immediately before the partition,—

(a)

the new parcels are instead managed under the governance agreement; and

(b)

the governance body must comply with section 208.

(5)

If, immediately before the existing parcel is partitioned, any lease, licence, mortgage, easement, or other interest affects—

(a)

all or part of the parcel, the interest continues to apply to the same land in the new parcels; or

(b)

only 1 or more owners’ individual freehold interests in the parcel, the interest then applies to those owners’ individual freehold interests in the new parcels.

(6)

However, subsection (5) does not prevent the variation of an interest immediately upon partition.

Amalgamation of parcels of Māori freehold land or other land

117 Amalgamation of parcels

(1)

Two or more existing parcels of land may be amalgamated into 1 new parcel, but only if—

(a)

the existing parcels comply with this section; and

(b)

the actions required by section 118 are completed.

(2)

The existing parcels—

(a)

must be 1 or more existing parcels of Māori freehold land; and

(b)

may include 1 or more existing parcels of other private land that resulted from a partition under section 296 of Te Ture Whenua Maori Act 1993 or section 440 of the Maori Affairs Act 1953.

(3)

Each existing parcel must adjoin another of the existing parcels.

(4)

All of the existing parcels—

(a)

must be owned by 1 or more classes of collective owners or must not be owned by any class of collective owners; and

(b)

must be managed under the same governance agreement or must not be managed under any governance agreement.

(5)

See the following provisions for how the owners of Māori freehold land may change the ownership or governance of the land to qualify for amalgamation:

(b)

(c)

118 Actions required for amalgamation

This section sets out the actions that must be completed in order to amalgamate existing parcels.

(2)

A survey plan must be prepared that defines the new parcel in compliance with the applicable survey standards.

(3)

An allocation scheme must be prepared that allocates the beneficial ownership of the new parcel in accordance with section 119.

(4)

The amalgamation, including the survey plan and allocation scheme, must be agreed to in respect of each existing parcel as follows:

(a)

for Māori freehold land managed under a governance agreement, by the governance body:

(b)

for other Māori freehold land, by owners who together hold more than 50% of the participating owners’ total share in the parcel:

(c)

for other private land, by the owners of the parcel.

(4A)

For a governance body’s decision to amalgamate a parcel, seeclause 13 of Schedule 4, which requires the agreement of owners who together hold more than 50% of the participating owners’ total share in the land (unless the governance agreement requires a greater level of agreement).

(5)

The amalgamation, including the survey plan and allocation scheme, must also be agreed to by—

(a)

the grantor of each easement or other interest that benefits an existing parcel; and

(b)

the grantee of each lease, licence, mortgage, easement, or other interest that burdens an existing parcel.

(6)

If the existing parcels are managed under a governance agreement, the governance body must have a land management plan that complies with section 210 and that authorises the particular amalgamation.

(7)

The amalgamation must be conditional on the court making an order of confirmation that—

(a)

the amalgamation, including the survey plan and allocation scheme, complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the allocation scheme is fair and equitable to all owners.

(8)

If any lease, licence, mortgage, easement, or other interest that affects an existing parcel is to be varied because of the amalgamation (for example, to change the area to which it applies or to apportion rights or interests under it), the variation must be made conditional on an order of confirmation being made for the amalgamation.

119 Allocation scheme for new parcel on amalgamation

(1)

This section sets out the requirements for an allocation scheme for an amalgamation.

Class of collective owners

(2)

If all existing parcels are owned by a single class of collective owners, the allocation scheme must provide for the new parcel to be owned by that class of collective owners, and the rest of this section does not apply.

(3)

If all existing parcels are owned by a class of collective owners, but there are 2 or more different classes, the allocation scheme must provide for the new parcel to be owned by a class of collective owners defined as the combination of each of those different classes, and the rest of this section does not apply.

No class of collective owners

(4)

If no existing parcel is owned by a class of collective owners, the allocation scheme must provide for the new parcel to be owned in 1 of the following ways:

(a)

by a sole owner:

(b)

by joint tenants:

(c)

by tenants in common.

(5)

The allocation scheme must allocate ownership of the new parcel so that, as nearly as practicable, the value of owners’ interests in the land overall does not change on amalgamation.

(6)

However, 1 or more owners may agree to allocate their interests on a different basis, as long as it does not affect the allocation of the other owners’ interests.

120 Effect of amalgamation

(1)

This section applies if land is amalgamated.

(2)

The amalgamated land is held as the single new parcel defined by the survey plan for the amalgamation.

(3)

The beneficial ownership of the new parcel is vested in accordance with the allocation scheme for the amalgamation.

(4)

If the existing parcels are managed under a governance agreement immediately before the amalgamation,—

(a)

the new parcel is instead managed under the governance agreement; and

(b)

the governance body must comply with section 208.

(5)

Any land that is amalgamated becomes Māori freehold land if it is not already.

(6)

If, immediately before a parcel is amalgamated, any lease, licence, mortgage, easement, or other interest affects—

(a)

all or part of the parcel, the interest continues to apply to the same land in the new parcel; or

(b)

only 1 or more owners’ individual freehold interests in the parcel, the interest then applies to those owners’ individual freehold interests in the new parcel.

(7)

However, subsection (6) does not prevent the variation of an interest immediately upon amalgamation.

Aggregation of parcels of Māori freehold land or other land

121 Aggregation of ownership of parcels

(1)

The beneficial ownership of 2 or more parcels of land may be aggregated so that each parcel becomes owned by the aggregate of the owners of all the parcels, but only if—

(a)

the parcels comply with this section; and

(b)

the actions required by section 122 are completed.

(2)

The land whose ownership is to be aggregated—

(a)

must be 1 or more parcels of Māori freehold land; and

(b)

may include 1 or more parcels of other private land that resulted from a partition under section 296 of Te Ture Whenua Maori Act 1993 or section 440 of the Maori Affairs Act 1953.

(3)

All of the parcels—

(a)

must be owned by 1 or more classes of collective owners or must not be owned by any class of collective owners; and

(b)

must be managed under the same governance agreement or must not be managed under any governance agreement.

(4)

Seesection 48 for how the owners of Māori freehold land may convert it to collective ownership to qualify for aggregation of ownership.

122 Actions required for aggregation of ownership

(1)

This section sets out the actions that must be completed in order to aggregate ownership of parcels.

(2)

An allocation scheme must be prepared that allocates the beneficial ownership of the parcels in accordance with section 123.

(3)

The aggregation, including the allocation scheme, must be agreed to in respect of each parcel as follows:

(a)

for Māori freehold land managed under a governance agreement, by the governance body:

(b)

for other Māori freehold land, by owners who together hold 75% or more of the participating owners’ total share in the parcel:

(c)

for other private land, by the owners of the parcel.

(3A)

For a governance body’s decision to aggregate ownership of a parcel, seeclause 13 of Schedule 4, which requires the agreement of owners who together hold 75% or more of the participating owners’ total share in the land (unless the governance agreement requires a greater level of agreement).

(4)

The aggregation must be conditional on the court making an order of confirmation that—

(a)

the aggregation, including the allocation scheme, complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the allocation scheme is fair and equitable to all owners.

123 Allocation scheme for parcels on aggregation of ownership

(1)

This section sets out the requirements for an allocation scheme for an aggregation of ownership.

Class of collective owners

(2)

If all parcels are owned by 1 or more classes of collective owners, the allocation scheme must provide for the parcels to be owned by a class of collective owners defined as the combination of each of those classes, and the rest of this section does not apply.

No class of collective owners

(3)

If no parcel is owned by a class of collective owners, the allocation scheme must provide for each parcel to be owned in 1 of the following ways:

(a)

by joint tenants, but only if each parcel whose ownership is to be aggregated is held by joint tenants:

(b)

by tenants in common.

(4)

The allocation scheme must allocate ownership of the parcels so that—

(a)

ownership of all of the parcels is the same; and

(b)

as nearly as practicable, the value of owners’ interests in the land overall does not change on aggregation of ownership.

(5)

However, 1 or more owners may agree to allocate their interests on a different basis, as long as it does not affect the allocation of the other owners’ interests.

124 Effect of aggregation of ownership

(1)

This section applies if the beneficial ownership of land is aggregated.

(2)

The beneficial ownership of the parcels is vested in accordance with the allocation scheme for the aggregation.

(3)

Any land whose ownership is aggregated becomes Māori freehold land if it is not already.

(4)

If, immediately before a parcel’s ownership is aggregated, any lease, licence, mortgage, easement, or other interest affects—

(a)

all or part of the parcel, the interest continues to apply to the same land after aggregation; or

(b)

only 1 or more owners’ individual freehold interests in the parcel, the interest then applies to those owners’ individual freehold interests in the parcels after aggregation.

(5)

Land cannot cease to be Māori freehold land while its ownership is aggregated with other land.

(6)

Seesection 140(3), which provides that, where the ownership of parcels is aggregated, an individual freehold interest in a parcel may be disposed of only together with individual freehold interests that comprise equal shares of the other parcels.

Cancellation of aggregation of parcels of Māori freehold land

125 Cancellation of aggregation of ownership of parcels

(1)

The aggregation of the beneficial ownership of 2 or more parcels of Māori freehold land may be cancelled so that each parcel becomes separately owned, but only if the actions required by this section are completed.

(2)

An allocation scheme must be prepared that allocates the beneficial ownership of the parcels in accordance with section 126.

(3)

The cancellation, including the allocation scheme, must be agreed to in respect of each parcel by—

(a)

the governance body, if the parcel is managed under a governance agreement; or

(b)

owners who together hold 75% or more of the participating owners’ total share in the parcel, in any other case.

(3A)

For a governance body’s decision to cancel the aggregation of ownership of a parcel, seeclause 13 of Schedule 4, which requires the agreement of owners who together hold 75% or more of the participating owners’ total share in the land (unless the governance agreement requires a greater level of agreement).

(4)

The cancellation must be conditional on the court making an order of confirmation that—

(a)

the cancellation, including the allocation scheme, complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the allocation scheme is fair and equitable to all owners.

126 Allocation scheme for parcels on cancellation of aggregation of ownership

(1)

This section sets out the requirements for an allocation scheme for the cancellation of an aggregation of ownership.

Class of collective owners

(2)

If the parcels are owned by a class of collective owners, the allocation scheme must provide for each parcel to be owned by the class of collective owners who owned it immediately before the aggregation, and the rest of this section does not apply.

No class of collective owners

(3)

If the parcels are not owned by a class of collective owners, the allocation scheme must provide for each parcel to be owned in 1 of the following ways:

(a)

by a sole owner:

(b)

by joint tenants:

(c)

by tenants in common.

(4)

The allocation scheme must allocate ownership of the parcels so that—

(a)

each parcel becomes owned by those who owned it immediately before the aggregation (or by their successors in title); but

(b)

as nearly as practicable, the value of owners’ interests in the land overall does not change on cancellation.

(5)

However, 1 or more owners may agree to allocate their interests on a different basis, as long as it does not affect the allocation of the other owners’ interests.

127 Effect of cancellation of aggregation

(1)

This section applies if the aggregation of beneficial ownership of land is cancelled.

(2)

The beneficial ownership of the parcels is vested in accordance with the allocation scheme for the cancellation.

(3)

If, immediately before the aggregation of a parcel’s ownership is cancelled, any lease, licence, mortgage, easement, or other interest affects—

(a)

all or part of the parcel, the interest continues to apply to the same land after cancellation; or

(b)

only 1 or more owners’ individual freehold interests in the parcel, the interest then applies to those owners’ individual freehold interests in the parcels after cancellation.

Grant of lesser interest over parcel of Māori freehold land

128 Lease of parcel for general purposes

(1)

A lease may be granted over all or part of a parcel of Māori freehold land for a purpose other than residential housing, but only in accordance with this section.

(2)

The term of the lease must be 99 years or less.

Requirement for agreement (unless lease is renewal)

(3)

The lease must be agreed to in accordance with subsections (5) to (7).

(3)

If the land is managed under a governance agreement, the lease must be agreed to by the governance body. Seeclause 13 of Schedule 4, which provides that a lease of more than 52 years requires the agreement of owners who together hold more than a 50% share in the land (unless the governance agreement requires a greater level of agreement).

(3A)

If the land is not managed under a governance agreement, a lease for the term specified must be agreed to as follows:

(a)

for a term of 7 years or less, by owners who together hold 75% or more of the participating owners’ total share in the land; or

(b)

for a term of 25 years or less, but more than 7 years, by owners who together hold a 25% or more share in the land; or

(c)

for a term of more than 25 years, by owners who together hold more than a 50% share in the land.

(4)

However, agreement is not required for a lease granted under a right of renewal included in another lease.

(5)

If the lease is granted for a term of 52 years or less and is not a self-lease, the lease must be agreed to by—

(a)

the governance body, if the land is managed under a governance agreement; or

(b)

owners who together hold 75% or more of the participating owners’ total share in the land, in any other case.

(6)

If the lease is granted for a term of more than 52 years and is not a self-lease, the lease must be agreed to by—

(a)

the governance body, if the land is managed under a governance agreement; or

(b)

owners who together hold more than a 50% share in the land, in any other case.

(7)

If the lease is a self-lease, the lease must be agreed to by the governance body.

Other provisions

(7)

The land to be leased must be defined on a survey plan made in compliance with the applicable survey standards.

(8)

If the land is not managed under a governance agreement and the lease is granted for a term of more than 52 25 years, the grant of the lease must be conditional on the court making an order of confirmation that the grant complies with the requirements of Parts 1 to 9.

(9)

The lessee’s interest under the lease may, unless the terms and conditions of the lease provide otherwise,—

(a)

be assigned; or

(b)

be subleased, but only in accordance with the provision in this Part that restricts a lease of the sublease’s type, except that the governance body or owners may have agreed to the headlease on the basis that it is also agreement to any sublease.

(10)

However, the lessee’s interest under a self-lease cannot be assigned or subleased to anyone other than—

(a)

the governance body that manages the land; or

(b)

an entity controlled by the governance body; or

(c)

an assignee on sale under a power in a mortgage of the lessee’s interest; or

(d)

any person for the purpose of residential housing.

(10)

However, if land managed under a governance agreement is leased to the governance body or an entity controlled by the governance body, the lessee’s interest under the lease may be subleased to 1 of the following without complying with the provision in this Part that restricts a lease of the sublease’s type:

(a)

the governance body; or

(b)

an entity controlled by the governance body; or

(c)

an assignee on sale under a power in a mortgage of the lessee’s interest; or

(d)

any person for the purpose of residential housing.

(11)

In this section and sections 129 and 130,—

entity controlled by the governance body means an entity for which the governance body has—

(a)

direct or indirect control of 50% or more of the votes at any meeting of the members or controlling body; or

(b)

the direct or indirect right to appoint 50% or more of the trustees, directors, or managers (however described)

residential housing means—

(a)

the occupation of existing premises as a place of residence; or

(b)

the building of premises on, or transporting of premises onto, land and the occupation of the premises as a place of residence

self-lease means a lease of land managed under a governance agreement that is granted to the governance body or an entity controlled by the governance body

term includes—

(a)

any further terms that may be granted under rights of renewal included in the lease; and

(b)

for a lease granted under a right of renewal, the terms of any leases from which the right of renewal derives.

129 Lease of parcel for residential housing with rent payable

(1)

A lease may be granted over all or part of a parcel of Māori freehold land for the purpose of residential housing and with rent payable, but only in accordance with this section.

(2)

The term of the lease must be 99 years or less, or the lease must be a periodic tenancy (as defined by section 2(1) of the Residential Tenancies Act 1986).

(3)

The lease cannot be granted unless the land is managed under a governance agreement, and the lease must be agreed to by the governance body.

(4)

However, agreement is not required for a lease granted under a right of renewal included in another lease.

(5)

The lessee’s interest under the lease may be—

(a)

assigned; or

(b)

subleased, but only in accordance with the provision in this Part that restricts a lease of the sublease’s type, except that the governance body may have agreed to the headlease on the basis that it is also agreement to any sublease.

130 Lease of parcel for residential housing rent-free

(1)

A lease may be granted over all or part of a parcel of Māori freehold land for the purpose of residential housing and rent-free, but only in accordance with this section.

(2)

The term of the lease must be—

(a)

99 years or less; or

(b)

for the life of the person to whom it is granted.

(3)

The lease must be agreed to by—

(a)

the governance body, if the land is managed under a governance agreement; or

(b)

owners who together hold 75% or more of the participating owners’ total share in the land, in any other case.

(4)

However, agreement is not required for a lease granted under a right of renewal included in another lease.

(5)

The person to whom the lease is granted must be—

(a)

an owner of the land; or

(b)

a beneficiary of a whānau trust that has an interest in the land.

(6)

The lease may include a provision that allows any of the following people to occupy the premises on the leased land in addition to the grantee as long as any maximum number of occupants that is specified in the lease is complied with:

(a)

any member of the grantee’s immediate family; and

(b)

the principal caregiver of the grantee or of a member of the grantee’s immediate family.

(7)

The lease may be granted with conditions, which may include the requirement to pay any charges (but not rent) that relate to the property.

(8)

The lease is enforceable even though no rent is payable under it, despite any other enactment or rule of law.

(9)

The grantee’s interest under the lease cannot be subleased, and the unexpired term of the lease (if any) may be disposed of only in accordance with section 131 or 255.

(10)

The lease ends if the unexpired term of the lease is not disposed of under section 131 or 255 once the grantee, or a recipient under either of those provisions, dies.

131 Gift of rent-free lease for residential housing

(1)

The grantee of a rent-free lease for residential housing under section 42 or 130 may assign the unexpired term of the lease to another person, but only in accordance with this section.

(2)

The lease must be gifted to the following (the recipient):

(a)

a child or grandchild of the grantee; or

(b)

a parent of the grantee; or

(c)

the grantee’s spouse, civil union partner, or de facto partner; or

(d)

for a lease granted under section 42, a beneficiary of the whenua tāpui; or

(e)

for a lease granted under section 130, an owner of the land or a beneficiary of a whānau trust that has an interest in the land.

(3)

Any provision of the lease referred to in section 42(6) or 130(6) (about additional occupants) applies to the recipient as the grantee of the lease.

(4)

Alternatively, the terms of the gift may vary the lease to delete that provision or to insert a new or replacement provision of that type.

(5)

Despite any provision of the lease, the recipient’s principal caregiver is entitled to occupy the premises on the leased land in addition to the recipient, if the grantee gifts the lease by will to a recipient who—

(a)

who is a child or grandchild of the grantee; and

(b)

who is less than 18 years of age or requires full-time care; and

(c)

occupied the premises as for whom the premises were his or her primary principal place of residence when the grantee died.

(6)

If subsection (5) applies and the recipient’s principal caregiver is also the principal caregiver for persons not entitled to occupy the premises, those persons are entitled to occupy the premises as long as any maximum number of occupants that is specified in the lease is complied with.

(7)

If a recipient has a principal caregiver, a kaiwhakamarumaru, or a welfare guardian, that person may administer the lease on the recipient’s behalf.

(8)

The recipient of a lease under this section or section 255, as the grantee of the lease, may assign the unexpired term of the lease in accordance with this section, but only to a child or grandchild of the original grantee of the lease.

132 Licence or profit à prendre over parcel

(1)

A licence or profit à prendre may be granted over all or part of a parcel of Māori freehold land, but only in accordance with this section.

(2)

The term of the licence or profit à prendre must be—

(a)

52 years or less; or

(b)

in the case of a forestry right under the Forestry Rights Registration Act 1983, 99 years or less.

(3)

The licence or profit à prendre must be agreed to by—

(a)

the governance body, if the land is managed under a governance agreement; or

(b)

owners who together hold more than a 50% share in the land, in any other case.

(3)

If the land is managed under a governance agreement, the licence or profit à prendre must be agreed to by the governance body.

(3A)

If the land is not managed under a governance agreement, a licence or profit à prendre for the term specified must be agreed to as follows:

(a)

for a term of 7 years or less, by owners who together hold 75% or more of the participating owners’ total share in the land; or

(b)

for a term of 25 years or less, but more than 7 years, by owners who together hold a 25% or more share in the land; or

(c)

for a term of more than 25 years, by owners who together hold more than a 50% share in the land.

(4)

However, agreement is not required for a licence or profit à prendre granted under a right of renewal included in another licence or profit à prendre.

(5)

This section does not restrict a subgrant (for example, a sublicence) under a licence or profit à prendre over Māori freehold land.

(6)

In this section, term includes—

(a)

any further terms that may be granted under rights of renewal included in the licence or profit à prendre; and

(b)

for a licence or profit à prendre granted under a right of renewal, the terms of any licences or profits à prendre from which the right of renewal derives.

133 Mortgage or charge over parcel

(1)

A mortgage or other charge may be granted over all or part of a parcel of Māori freehold land, but only in accordance with this section.

(2)

The mortgage or other charge must be agreed to by—

(a)

the governance body, if the land is managed under a governance agreement; or

(b)

owners who together hold a 75% or more share in the land, in any other case.

(3)

The part of the land comprising the buildings and other fixtures attached to the land, and everything growing on the land,—

(a)

may be charged separately from the rest of the land; and

(b)

despite any other enactment or rule of law, may be transferred separately from the rest of the land under a power expressed or implied by the charge.

(4)

This section does not restrict—

(a)

the grant of a mortgage or other charge over a lesser estate or interest (for example, a leasehold estate); or

(b)

the creation of a statutory land charge under another Act.; or

(c)

the creation of a security interest as defined by section 17 of the Personal Property Securities Act 1999.

(5)

To avoid doubt, a transfer described by subsection (3)﻿(b) is not—

(a)

a partition of land for the purposes of Parts 1 to 9; or

(b)

a subdivision of land for the purposes of Part 10 of the Resource Management Act 1991.

(a)

a lease, licence, profit à prendre, mortgage, or charge is to be varied to apply to additional or different Māori freehold land; or

(b)

a lease, licence, or profit à prendre over Māori freehold land is to be varied as to its term (including any further terms that may be granted under rights of renewal).

(2)

The variation of the interest must comply with the provision in this Part that restricts the granting of the interest itself, as if the variation were the grant of such an interest (and not a renewal).

(3)

Subsection (4) applies if—

(a)

a lease over Māori freehold land is to be varied so that the lease is for a different purpose; and

(b)

the lease was originally granted under a provision of sections 128 to 130 that is different from the provision (the other provision) that applies to leases granted for that different purpose.

(4)

The variation must comply with the other provision as if the variation were the grant of a lease for that different purpose (and not a renewal).

135 Easement over parcel

(1)

The following easements may be granted over all or part of a parcel of land, but only in accordance with this section:

(a)

an easement over Māori land for the benefit of any land or in gross for the benefit of any person:

(b)

an easement over land other than Māori land for the benefit of Māori land.

(2)

The easement must be agreed to as follows in respect of the land over which it runs and any land that it benefits:

(a)

for Māori freehold land managed under a governance agreement, by the governance body:

(b)

for other Māori freehold land, by owners who together hold more than a 50% share in the land:

(c)

for Māori customary land with a kaiwhakahaere appointed for that purpose, by the kaiwhakahaere:

(d)

for other Māori customary land, by the Māori Trustee:

(e)

for other private land, by the owners of the land:

(f)

for Crown land, by the Minister responsible for the land or the registered proprietor of the land.

(3)

An easement that runs over, or that benefits, land reserved as a whenua tāpui must also be agreed to by the administering body of the whenua tāpui.

(4)

An easement for a right of way that connects with a State highway or any other road must also be agreed to by—

(a)

the New Zealand Transport Agency and the relevant territorial authority, for connection with a State highway; or

(b)

the relevant territorial authority, for connection with any other road.

(4A)

The land over which the easement runs must be defined on a survey plan made in compliance with the applicable survey standards.

(5)

Section 348 of the Local Government Act 1974 does not apply to an easement for a right of way created under this section for the benefit of Māori land.

(6)

The easement must be conditional on the court making an order of confirmation that the easement complies with the requirements of Parts 1 to 9.

(7)

This section does not apply to—

(a)

an easement required by an order made by virtue of section 319; or

(b)

an easement that may be granted under section 65 of the Maori Affairs Restructuring Act 1989.

136 Cancellation or variation of easement

(1)

The following easements over all or part of a parcel of land may be cancelled or varied, but only in accordance with this section:

(a)

an easement over Māori land for the benefit of any land or in gross for the benefit of any person:

(b)

an easement over land other than Māori land for the benefit of Māori land:

(c)

any other easement that would have satisfied paragraph (a) or (b) when it was created but that no longer does so because of changes in the status of land.

(2)

Cancellation or variation of the easement must be agreed to as follows in respect of the land over which it runs and any land that it benefits:

(a)

for Māori freehold land managed under a governance agreement, by the governance body:

(b)

for other Māori freehold land, by owners who together hold more than a 50% share in the land:

(c)

for Māori customary land with a kaiwhakahaere appointed for that purpose, by the kaiwhakahaere:

(d)

for other Māori customary land, by the Māori Trustee:

(e)

for other private land, by the owners of the land:

(f)

for Crown land, by the Minister responsible for the land or the registered proprietor of the land.

(3)

Cancellation or variation of an easement that runs over, or that benefits, land reserved as a whenua tāpui must also be agreed to by the administering body of the whenua tāpui.

(3A)

For a variation, the land over which the easement runs must be defined on a survey plan made in compliance with the applicable survey standards.

(4)

An easement for a right of way must not be cancelled or varied if it would cause the land that benefits from the easement to become landlocked land (as defined by section 319).

(5)

The cancellation or variation must be conditional on the court making an order of confirmation that the cancellation or variation complies with the requirements of Parts 1 to 9.

137Kawenata tiaki whenua over parcel

(1)

A kawenata tiaki whenua may be created over all or part of a parcel of Māori freehold land, or other land, managed under a governance agreement (the affected area), but only in accordance with this section.

(2)

The kawenata tiaki whenua must be created by an instrument that is agreed to by the governance body that manages the land.

(3)

The kawenata tiaki whenua must state that its purpose is to ensure that the affected area is managed so as to preserve and protect—

(a)

a place of cultural or historical interest; or

(b)

a place of special significance according to tikanga Māori.

(4)

The kawenata tiaki whenua must state that it lasts forever or for a specified term.

(5)

The kawenata tiaki whenua may include any conditions on the use of the affected area that—

(a)

further the purpose of the kawenata tiaki whenua; or

(b)

enable the governance body to manage the affected area alongside activities on land adjacent to the affected area, but only if the conditions are not inconsistent with the purpose of the kawenata tiaki whenua.

(6)

If the affected area is only part of a parcel,—

(a)

the affected area must be defined on a survey plan made in compliance with the applicable survey standards; or

(b)

the kawenata tiaki whenua must be supported by a certificate from the Surveyor-General that the affected area is adequately described or defined for the nature of the kawenata tiaki whenua and in relation to existing surveys made in compliance with the applicable survey standards.

138Cancellation or variation of kawenata tiaki whenua

(1)

A kawenata tiaki whenua over all or part of a parcel of land may be cancelled or varied, but only in accordance with this section.

(2)

The kawenata tiaki whenua may be cancelled or varied by an instrument that is agreed to by the governance body that manages the land.

(3)

If the land is no longer managed by a governance body, the kawenata tiaki whenua may be cancelled or varied by an order of the court that may be made—

(a)

on application by an owner of the land, or on the court’s own initiative in determining an application under section 227 for an order cancelling a governance agreement; and

(b)

only if the cancellation or variation is agreed to by owners who together hold more than 50% of the participating owners’ total share in the parcel.

139Effect and notation of kawenata tiaki whenua

(1)

A kawenata tiaki whenua created under section 137—

(a)

is a covenant that runs with and binds the land comprising the affected area; and

(b)

is an interest in land for the purposes of the Land Transfer Act 1952.

(2)

The governance body that manages the land must lodge with the Registrar-General the instrument that creates, cancels, or varies a kawenata tiaki whenua.

(3)

On receiving the instrument, the Registrar-General must,—

(a)

for the creation or variation of a kawenata tiaki whenua, record a notation of the kawenata tiaki whenua or variation on the computer freehold register for the land; or

(b)

for the cancellation of a kawenata tiaki whenua, remove any notation of the kawenata tiaki whenua from the computer freehold register for the land.

(4)

To avoid doubt, if the land subject to a kawenata tiaki whenua is no longer managed by a governance body, the Registrar-General must register in accordance with section 289 an order that cancels or varies the kawenata tiaki whenua (after the Chief Registrar provides the order to the chief executive under section 269).

Sale, gift, exchange, and mortgage of individual freehold interest in Māori freehold land

140 Disposition of individual freehold interest

(1)

An individual freehold interest in any Māori freehold land may be disposed of separately from the other individual freehold interests in the land, but only if permitted by and in accordance with this section.

(2)

The individual freehold interest may be—

(a)

sold to the following, but cannot be sold under a power given by will:

(i)

a preferred recipient in relation to the land; or

(ii)

a governance body, other than an existing statutory body or a representative entity, that manages the land under a governance agreement, other than an existing statutory body or a representative entity:

(b)

gifted to—

(i)

a preferred recipient in relation to the land; or

(ii)

a governance body, other than an existing statutory body or a representative entity, that manages the land under a governance agreement, other than an existing statutory body or a representative entity:

(c)

exchanged for something else, but only in accordance with section 141:

(d)

mortgaged or charged.

(3)

If the beneficial ownership of 2 or more parcels of land is aggregated, an individual freehold interest in a parcel may be disposed of under subsection (2) only together with individual freehold interests that comprise equal shares of the other parcels.

(4)

To avoid doubt, the sales or gifts to which this section applies include—

(a)

a sale or gift by the owner of the individual freehold interest:

(b)

a sale under a power expressed or implied in a mortgage:

(c)

a gift by will or a sale under a power given by will.

141 Exchange of individual freehold interest

(1)

An individual freehold interest (interest A) in any Māori freehold land (land A) may be exchanged by its owner for something else, but only in accordance with this section.

(2)

Interest A must be exchanged for an individual freehold interest (interest B) in any private land other than Māori customary land (land B).

(3)

The owner of interest B must be a preferred recipient in relation to land A.

(4)

If land B is Māori freehold land, the owner of interest A must be a preferred recipient in relation to land B.

(5)

The exchange must be agreed to by the owner of each interest.

(6)

To avoid doubt, if interests are exchanged under this section, land A and land B do not become land of a different status.

General provisions about dispositions

142 Dispositions made by instruments

(1)

The instrument required by the Land Transfer Act 1952 and its regulations must be used in order for a disposition to be registered under that Act.

(2)

The instrument required by regulations made under Parts 1 to 9 must be used in order for a disposition to be recorded in the Māori land register.

143 Dispositions of Māori freehold land have effect when recorded or registered

(1)

A disposition of Māori freehold land does not have effect until it is recorded in the Māori land register, whether the disposition is of all or part of a parcel or of an individual freehold interest.

(2)

However, a disposition that may be registered under the Land Transfer Act 1952—

(a)

does not have effect for the purposes of legal title until it is registered under that Act; but

(b)

may have earlier effect for the purposes of equitable title once it is recorded in the Māori land register.

144 Recording dispositions on Māori land register

(1)

This section provides for the recording in the Māori land register of an instrument executed by the parties to make a disposition of Māori freehold land, whether the disposition is of all or part of a parcel or of an individual freehold interest.

(2)

The chief executive may record the instrument in the Māori land register only if—

(a)

the instrument complies with the requirements prescribed by regulations; and

(b)

for a disposition that requires an order of confirmation that it complies with the requirements of Parts 1 to 9 (and of any other matter), the order of confirmation has been made and sealed.

(3)

Even if the requirements of subsection (2) are satisfied, if the chief executive considers that there is doubt about whether the disposition complies with the requirements of any enactment (including Parts 1 to 9, if there is no order of confirmation for the disposition), then the chief executive—

(a)

need not record the instrument in the Māori land register; and

(b)

may instead record the instrument only after obtaining under section 147—

(i)

satisfactory evidence that the disposition complies; or

(ii)

an order that the disposition complies; but

(c)

must not finally refuse to record the instrument unless he or she obtains an order that the disposition does not comply.

145 Registering dispositions under Land Transfer Act 1952

(1)

This section provides for registration under the Land Transfer Act 1952 of an instrument executed by the parties to make a disposition of Māori freehold land, whether the disposition is of all or part of a parcel or of an individual freehold interest.

(2)

The Registrar-General may register the instrument only if the instrument has been recorded in the Māori land register or is recorded in the Māori land register at the same time.

(3)

If the instrument has been recorded in the Māori land register, the Registrar-General may treat the instrument as an instrument that complies complying with the requirements prescribed by regulations for an instrument to be recorded in the Māori land register.

(4)

To avoid doubt, the registration of any instrument is subject to the provisions of the Land Transfer Act 1952 (for example, section 43 of that Act, which applies if a lodged instrument is not in order for registration, and section 164 of that Act, which requires the correctness of an instrument to be certified).

146 Disposition must comply with certain other enactments

(1)

Any requirements in the following enactments that apply to a disposition restricted by Parts 1 to 9 must be satisfied in addition to the requirements in Parts 1 to 9:

(a)

Part 2 of the Maori Affairs Restructuring Act 1989:

(b)

Maori Reserved Land Act 1955.

(2)

This section does not exclude any other enactment from also applying to a disposition (for example, the Property Law Act 2007 or the Land Transfer Act 1952).

Example

A parcel of Māori freehold land is subject to Part 2 of the Maori Affairs Restructuring Act 1989. A sale of the land must comply with section 19(5) of that Act (which requires the chief executive’s consent to an alienation) in addition to the requirements of section 100 of Parts 1 to 9.

147 Evidence and orders about compliance with enactments before instruments recorded

(1)

The chief executive may request evidence or apply for an order under this section for the purposes of section 144(3).

(2)

The chief executive may request from the parties to a disposition evidence that the disposition complies with the requirements of 1 or more enactments specified by the chief executive.

(3)

The court may, on application by the chief executive, make an order as to whether a disposition complies with the requirements of 1 or more enactments specified in the application.

(4)

The chief executive must not make an application without first requesting evidence of compliance from the parties and including in the application any evidence about compliance provided by the parties.

148 Orders about compliance with enactments after instruments recorded

(1)

The court may, on application, make an order as to whether a disposition whose instrument has been recorded in the Māori land register complied with the requirements of 1 or more enactments specified in the application.

(2)

The application may be made by any person who considers that the disposition did not comply with the requirements of the enactments with an interest in the matter.

(3)

The application may be made within 3 months after the day on which the instrument was recorded.

(4)

If the court makes an order that the disposition did not comply,—

(a)

the court may also do anything under section 310(1) to (4) as if it applied to the court (not only to the Chief Judge) and to any mistake or omission about compliance; and

(b)

sections 313(4) and (5) and 314 apply with any necessary modifications.

(5)

To avoid doubt, if the court made an order of confirmation or other order for the disposition, the person may at any time apply for an order to be made under section 310 (which relates to erroneous court orders).

149 Orders of confirmation for dispositions

(1)

The court may, on application, make an order of confirmation that a disposition that involves Māori freehold land complies with the requirements of Parts 1 to 9.

(2)

The order may also confirm or include any other matter provided for by another provision of Parts 1 to 9 or prescribed by regulations.

(3)

An application may be made by a party to any disposition that involves Māori freehold land (whether or not the disposition requires an order of confirmation under Parts 1 to 9).

(4)

If any land changes status when the disposition takes effect, the order of confirmation must state this.

(5)

The court may make the order of confirmation conditional on the satisfaction of any specified conditions (seesection 409), such as a condition agreed by the parties to the disposition that one party pays compensation to another party.

(6)

If any land affected by the disposition is subject to a charge imposed by an order of the court, the court’s order of confirmation may vary the charge in any manner it thinks fair and equitable to the owners.

(7)

If regulations made under section 326(f) apply any requirement for certification under another enactment, and an order confirms or includes any such matter as required by the regulations, those requirements for certification under the other enactment must be treated as being satisfied.

150 Determinations about dispositions by court

(1)

The court may make an order determining any question or dispute about whether a disposition is a disposition of a type to which a particular section of this Part applies.

(2)

The court may make the order—

(a)

on its own initiative in any proceedings; or

(b)

on application by a party to the disposition.

151 Certain matters registrable despite caveat

(1)

This section applies if—

(a)

a parcel of Māori freehold land is subject to a caveat against dealings under the Land Transfer Act 1952; and

(b)

the caveat was lodged to protect a person’s individual freehold interest in the land, including an equitable interest in the individual freehold interest; and

(c)

the person is not a registered proprietor of the fee simple estate in the land.

(2)

The caveat does not prevent the Registrar-General from registering—

(a)

any disposition of the parcel that is made in compliance with the requirements of Parts 1 to 9 and any other enactment; or

(b)

any disposition of an individual freehold interest other than the person’s individual freehold interest; or

(c)

a governance body as the registered proprietor of the land; or

(d)

the beneficial owners of the land as the registered proprietors of the land if it stops being managed under a governance agreement; or

(e)

a tupuna as the registered proprietor of the land under section 292; or

(f)

a vesting of any of the land that is done by Parts 1 to 9; or

(g)

any order made by the Māori Land Court, the Māori Appellate Court, the Chief Judge acting under section 310, or a Registrar.

152 Application of Part 3 of Property Law Act 2007 to mortgage of Māori freehold land

(1)

The provisions of Part 3 of the Property Law Act 2007 (the PLA) apply to a mortgage of Māori freehold land as modified by this section and with any other necessary modifications.

(2)

An application under the following provisions of the PLA must be made to, and dealt with by, the Māori Land Court:

(a)

section 107 (relating to an order directing the sale of mortgaged property):

(b)

section 137(1)﻿(c) (relating to an order for possession of land or goods):

(c)

section 170 (relating to an order consenting to a mortgagee’s withdrawal from possession):

(d)

section 171 (relating to an order directing a mortgagee’s withdrawal from possession):

(e)

section 180 (relating to an order conferring a power of sale that treats mines or minerals separately from land).

(3)

The Māori Land Court, but no other court, may discharge the mortgage under sections 109(1), 110, and 111 of the PLA.

(4)

The Māori Trustee, instead of Public Trust, may discharge the mortgage under sections 109(1) and 112 of the PLA.

(5)

Sections 125 and 126 of the PLA do not apply to the mortgage.

(6)

The power of a mortgagee in possession to enter into a lease under section 142 of the PLA, and any lease entered into, are subject to section 128 of Parts 1 to 9.

(7)

A mortgagee or other person required to prepare a report under section 162 or 163 of the PLA must, under section 165 of the PLA, also send a copy of the report to the following within 5 working days after preparing it:

(a)

the chief executive; and

(b)

a Registrar of the Māori Land Court.

(8)

If the Registrar of the High Court executes a transfer instrument under section 196(3) of the PLA, he or she must provide a copy of it to the chief executive.

(9)

Section 205 of the PLA also applies to a governance body to whom mortgaged land is transferred, assigned, or transmitted and limits liability to the extent of the assets held by the body that are available for meeting the obligations under the mortgage.

(10)

Mortgaged land cannot be subdivided under the implied power in clause 14 of Part 1 of Schedule 2 of the PLA unless the land is partitioned in accordance with Parts 1 to 9.